Reply to Professor Bartow

by Bret Boyce

I thank Professor Bartow for taking the time to respond to my article, but I am deeply disappointed that she has chosen to misrepresent many of its principal arguments, attacking me for statements I did not make and for opinions I do not hold. My article is a comparative study of constitutional obscenity jurisprudence in the United States and Canada. Prof. Bartow begins her critique by complaining that I should have written about international rather than comparative law: “Although this article was published in a forum dedicated to international law, as [sic] it does not discuss international law at all. There are many salient aspects of international law the author could have engaged with, particularly related to sex trafficking . . . . But since part of his goal was to dismiss harms associated with pornography production, he ignored them.”

The article was published in the Yale Journal of International Law, which, notwithstanding its title, is a forum devoted to comparative as well as international law. It examines the doctrine of obscenity, which criminalizes expression even in the absence of harm. My goal was not “to dismiss harms associated with pornography production.” For example, with regard to pornographic films, I wrote: “Certainly the use of coercion to produce such materials is a heinous crime. But coercive acts and materials produced thereby may be suppressed without resort to the doctrine of obscenity.” (p. 365) Trafficking, battering, rape and murder should be punished as such, and pornographic materials produced without the consent of the participants should be suppressed. But I reject the obscenity doctrine, because it permits the “criminalization of materials produced by and for consenting adults.” (p. 302)

Prof. Bartow agrees with me in rejecting U.S. obscenity doctrine, which turns on the concept of “community standards.” Like me, she is concerned that this doctrine is impossibly vague, and has been deployed in ways that are harmful to women. Unfortunately, however, Prof. Bartow dismisses my discussion of Canadian obscenity law in a single sentence: “Boyce criticizes Canadian obscenity law in some detail, which I will not address beyond noting that he distorts the positions held by Catharine MacKinnon and Andrea Dworkin.” Prof. Bartow does not support this claim by pointing to any specific examples of my alleged distortions of MacKinnon’s and Dworkin’s positions on Canadian obscenity law. She merely cites to a press release that they issued in 1994, in which they hailed the Canadian Supreme Court’s decision in R. v. Butler as a “breakthrough in equality jurisprudence.”

Prof. Bartow’s refusal to address Canadian obscenity law is unfortunate, because it offers important lessons regarding the implications of MacKinnon’s approach to these questions, an approach with which Prof. Bartow is evidently sympathetic. The Butler Court adopted arguments advanced by MacKinnon, who participated in preparing an influential amicus submission in the case. Quite implausibly, the Court equated the “community standards” test with a “degradation or dehumanization” test, declaring that whatever the community rejects must be harmful. In embracing the latter test, the Court adopted language that parallels the language of MacKinnon’s model antipornography ordinance. The Court was blithely confident that this “degradation or dehumanization” test would be applied in a manner that suppressed only “bad pornography,” but would not affect “good pornography.” MacKinnon devoted the final ten pages (or about ten percent) of Only Words to an extended paean of praise for this decision, which she described as the harbinger of a glorious future “in which equality is a fact, not merely a word.” [1]

The reality was quite different. Despite Butler’s egalitarian rhetoric, in its wake Canadian authorities deployed obscenity law (as they had always done) in a repressive and discriminatory manner to target sexual minorities. Seventy-five percent of the material detained by Canadian Customs was directed at gay and lesbian audiences. Over half the feminist bookstores in Canada were also targeted. Works of serious literature by Oscar Wilde, Langston Hughes, Jean Genet, Marguerite Duras and Audre Lorde were seized. Even two works by Andrea Dworkin herself were impounded.

These abuses did not initially lead the Canadian Supreme Court to reconsider the wisdom of its ruling in Butler. A number of lower courts in Canada upheld highly questionable seizures of gay and lesbian material. When the issue finally reached the Supreme Court of Canada in the Little Sisters litigation, the Court rejected the argument that the community standards test suppresses minority speech and that the harm-based test was really just the old morality-based test in disguise. The problem, said the Court, was not Butler, but the failure to implement Butler correctly. But in 2005, in R. v. Labaye, the Court, without expressly repudiating Butler, quietly discarded some of that decision’s most indefensible aspects. In Labaye, the Court abandoned the community standards test and held that the harm caused by “degrading and dehumanizing” material cannot be assumed, but must be “objectively shown beyond a reasonable doubt.” It is hard to see what is left of Butler after Labaye.

As for MacKinnon, she has never repudiated the Butler approach. She has merely advocated that civil rather than criminal sanctions be employed to suppress pornography. Of course, civil sanctions can be just as repressive as criminal sanctions. The ultimate incoherence of MacKinnon’s approach is that it seeks to rely on the machinery of the patriarchal state to suppress patriarchal speech. That the actual consequence of her approach was the suppression of gay, lesbian and feminist material should hardly be surprising.

Prof. Bartow accuses me of several forms of categorical confusion. She claims that I do not distinguish analytically between words and images. In fact, it is obscenity law that does not draw this distinction: it applies both to verbal “descriptions” and visual “depictions.” Likewise, MacKinnon’s model antipornography ordinance also does not draw such a distinction: it applies to the “the graphic sexually explicit subordination of women through pictures and/or words.” [2]

The possibility of prosecutions for mere verbal descriptions under either approach is neither remote nor hypothetical. Recently the U.S. government convicted Karen Fletcher on six counts of distributing obscenity for publishing fictional stories dealing with child abuse on a password-protected members-only website to which children had no access and on which no visual images were posted. Ms. Fletcher, herself a victim of sexual abuse, stated that “writing her stories helped alleviate her torment.” [3] As for the MacKinnon-inspired Butler approach in Canada, as I have already noted, it has led to the censorship of acknowledged literary masterpieces. For MacKinnon, this is not a problem, because in her view, the literary merit of a work should be legally irrelevant to the question whether it may be banned: “[I]f a woman is subjected, why should it matter that the work has other value?” [4]

Prof. Bartow also claims that I conflate “erotica, pornography, and obscenity”; indeed, she insists that I “deliberately obfuscate any distinction between erotica and pornography.” The purported “distinction” is an arbitrary and unprincipled one. As I note at the beginning of my article (pp. 303-304), the terms “pornography” and “obscenity” have no fixed meaning. Their meaning is highly contested and historically contingent, and they have been used in a notoriously opaque and subjective manner (especially by censorship advocates like MacKinnon) that leave little scope for discussion and analysis. In U.S. constitutional discourse, “pornography” is often seen as less extreme than “obscenity”; in the writings of MacKinnon, almost the opposite is true. Presumably for Prof. Bartow “erotica” is a positive term, while “pornography” is a negative one. But she does not offer a definition of these terms, and I have not seen any that is not both extremely subjective and potentially highly repressive.

On the other hand, MacKinnon (and apparently Prof. Bartow) indulge in some serious categorical confusions themselves. Most notably, they appear to reject the distinction between speech and conduct that is central to any system of constitutional freedom of expression. MacKinnon writes that at the level of social inequality the distinction between speech and conduct makes almost no sense, and that the speech-conduct distinction cannot explain why the description of a rape or murder might be constitutionally protected, while rape and murder are not. [5] According to Prof. Bartow, in that passage MacKinnon “is explaining that First Amendment absolutism, the view that whatever is expressive is constitutionally protected, doesn’t explain why rape and murder, which are expressive, are not protected.”

No one holds the view that “whatever is expressive is constitutionally protected.” Speech is generally protected as expression, conduct is generally not. Expressive conduct can be suppressed for reasons unrelated to the suppression of the message expressed. Murder and rape are prohibited because of the concrete harms they inflict, not the message they convey. The difference between a real rape or murder and a fictional description is obvious to most, if not to Profs. Bartow and MacKinnon.

The issue of consent is critical, yet chillingly, for Profs. Bartow and MacKinnon, it is beside the point. Prof. Bartow quotes MacKinnon on child pornography: “The law of child pornography, by contrast [to the law of obscenity]—based as it is on the assumption that children are harmed by having sex pictures made of them—applies a test developed in areas of speech other than sexual: if the harm of the speech outweighs its value, it can be restricted by appropriately targeted means.” This is an astonishing misstatement of the law. Child pornography (i.e., photographs of the sexual exploitation of children) is categorically unprotected: we do not apply a balancing test, and inquire if its “value” outweighs its “harm.” This is so because children are legally incapable of consenting to sex.

Mentally competent adults, on the other hand, are capable of consent. Yet Prof. Bartow criticizes me for focusing on the issue of consent, and (falsely) accuses me of failing to consider issues of coercion, as if there were no relation between the two. Likewise, for MacKinnon, consent is irrelevant. Under her model antipornography statute, “the fact that the person actually consented” “shall not constitute a defense” to a claim the person was coerced into performing in pornography. [6] This is Humpty Dumpty on steroids. MacKinnon contemptuously dismisses as pathetic and delusional any claim by actual women that they voluntarily engaged in acts that MacKinnon deems “degrading.” [7] By treating adult women as incapable of consent, she disrespects and infantilizes them.

Most pornography is not violent, and Prof. Bartow presents no genuine evidence for her claim that it is steadily becoming more violent. Nevertheless, Prof. Bartow is right to raise issues of coercion and exploitation. I am not unaware or unconcerned about these issues, as she patronizingly suggests. I agree with Prof. Bartow that better regulation of the pornography industry could help to protect the workers involved from violence, coercion, and disease. I am not “rabidly libertarian” on the issue of workplace regulation in the pornography industry, and I don’t know of any “liberals” who support regulation of working conditions in all industries except pornography. I do not believe, however, that suppression of truly consensual “pornography” (merely because someone deems it “degrading”) will effectively protect against the harms of coercion and exploitation. In fact, it will likely have the opposite effect, by driving the industry underground and making regulation impossible.

I could point to many other exaggerations, misstatements and falsehoods in Prof. Bartow’s comments. For example, she writes that while child pornography is prohibited, “the moment she turns eighteen, a women can be made to eat human feces.” One does not have to be a law professor to know, as Prof. Bartow surely does know, that that is false as a statement of the law.

In the next paragraph, she writes: “Boyce characterizes the economic size of the pornography industry in the text at page 368 . . . as ‘multi-billion dollar,’ so he apparently recognizes that obscenity law doesn’t seem to have encumbered the growth or distribution of pornography very much, but he never really acknowledges this explicitly.” I do in fact “really acknowledge this explicitly,” in the very sentence from which Prof. Bartow selectively quotes, where I write that in the U.S. “a handful of defendants are selectively prosecuted, while the major players in the multi-billion dollar pornography industry go unscathed.” (emphasis added)

By the end of her discussion Prof. Bartow appears to have lost all contact with reality. She writes: “Boyce also repeatedly alleges that Catharine MacKinnon is a prude, and allied with conservative religious forces. Using ‘conservative’ as an epithet shows his lack of comprehension about the consciousness raising and organizing that define the women’s movement. . . . A woman does not have to be a liberal to be a feminist.” For the record, I never once refer to Catharine MacKinnon as a prude. Indeed, it is inconceivable to me that anyone who has managed to slog through MacKinnon’s coarse, vulgar and frankly pornographic rantings in Only Words could possibly describe her as a prude. Nor do I describe her as a conservative, although I do note, as have many anticensorship feminists, that MacKinnon’s position is objectively aligned with that of many religious conservatives. (p. 342)

These feminists have described MacKinnon’s position as deeply reactionary and paternalistic. Prof. Bartow, like MacKinnon, seems to regard her procensorship position as the only possible position that a feminist can legitimately maintain. In fact, many feminists reject her position. [8]  Prof. Bartow is not the Pope of feminism. In my view, it is she who takes an excessively narrow view of the women’s movement. One does not have to be a censorship advocate (or for that matter a woman) to be a feminist or to care about women’s well-being.

Footnotes

[1] Catharine MacKinnon, Only Words 109 (1993).

[2] Id. at 121 n.32.

[3] A Prosecution Tests the Definition of Obscenity, New York Times, Sept. 28, 2007 at A18.  See also http://www.post-gazette.com/pg/08138/882650-85.stm .

[4] Catherine MacKinnon, Toward a Feminist Theory of the State 202 (1989).

[5] MacKinnon, Only Words at 30.

[6] Am. Booksellers Ass’n v. Hudnut, 771 F.3d 323, 325 (7th Cir. 1985).

[7] See MacKinnon, Only Words at 60.

[8] See, e.g., Nadine Strossen, Defending Pornography:  Free Speech, Sex, and the Fight for Women’s Rights 32-35, 161-178 (2000).

http://opiniojuris.org/2008/11/25/reply-to-professor-bartow/

8 Responses

  1. typo: Prof. Bartow does [not] support this claim by pointing to…

  2. Response…

    Thanks to Patrick O’Donnell for catching this typo–as he indicates, I meant to write “Prof. Bartow does not support this claim by pointing to . . .”

  3. ‘Likewise, for MacKinnon, consent is irrelevant. Under her model antipornography statute, “the fact that the person actually consented” “shall not constitute a defense” to a claim the person was coerced into performing in pornography. This is the Queen of Hearts on steroids. MacKinnon contemptuously dismisses as pathetic and delusional any claim by actual women that they voluntarily engaged in acts that MacKinnon deems “degrading.” By treating adult women as incapable of consent, she disrespects and infantilizes them.’

    There’s much truth to your critique here but perhaps I can salvage a grain of truth in Mackinnon’s approach, or at least raise an issue worthy of further address, although I realize it was not central to your paper, which I found helpful and well-argued.

    There’s “consent” and then there’s consent: we need to think a bit deeper about what’s involved here, especially because the notion of consent often assumes a rather robust if not idealized set of conditions that make for individual autonomy: some measure of self-mastery and the capacity for rational deliberation and self-reflection, the ability to form second-order desires, and so forth. It may be the case that women consenting to participation in pornography are not very autonomous in any meaningful sense, and thus their capacity for consent is a very nominal or attenuated one. Much in the same manner as we’ve come to recognize the overwhelming importance of “social determinants of health” (e.g., as causes of [biomedical] causes of disease and/or physical and mental pathology: hence health is the absence of pathology), perhaps we may come to appreciate the social determinants (or, better, ‘conditions’) of moral autonomy. This is analogous to the literature that critiques reliance on expressed or manifest preferences (in rational choice theory, welfare economics, etc.). By now it is well appreciated that people’s preferences may reflect varying degrees of coercion or manipulation or the effects of exploitation or violence. Thus, people may have the particular preferences they do as a result of problematic psychological (in the first instance, social) mechanisms:

    “For example, women who are systematically denied roles in public life or equal shares of consumption goods may learn not to want these things. Women who have been systematically oppressed may not have strong preferences for individual liberties [or meaningful autonomy], for the same wages that men earn, or even for protection from domestic violence. But liberties, high wages, and protection from domestic violence may make them better off than giving them what they prefer.” (Daniel M. Hausman and Michael S. McPherson)

    So, just as we might inquire into the origins or justifiability of preferences, so we might inquire into the origins or justifiability of (the conditions of) consent. I well realize this raises problems of paternalism and so on, but again, we might think of the nature of autonomy (what kind? Millian? Kantian? Expressivist? etc.). 

    Think too of the notion of “informed consent” that plays such a large role today in bioethics in general and medical ethics in particular:

    “By insisting on the importance of informed consent we make it possible for individuals to choose autonomously, however that is to be construed. But we in no way guarantee or require that they do so. Those who insist on the importance of informed consent in medical practice typically say nothing about individuality or character, about self-mastery, or rational reflection, or second-order desires, or about any other of the specific ways in which autonomous choices supposedly are to be distinguished from other, mere choices [analogously in our case: 'mere consent'].

    This minimalist interpretation of individual or personal autonomy in medical ethics in fact fits rather well with medical practice. When we are ill or injured we often find it hard to achieve any demanding version of individual autonomy. We are all too aware of our need and ignorance, and specifically that we need help from others whose expertise, control of resources and willingness to assist is not guaranteed. A person who is ill or injured is highly vulnerable to others, and highly dependent on their action and competence. Robust conceptions of autonomy may seem a burden and even unachievable for patients; mere choosing may be hard enough. And, in fact, the choices the patients are required to make are typically quite limited.” (Onora O’Neill)

    The rather thin if not nominal conception of autonomy that underpins the notion of informed consent in medical ethics is thus perhaps not a model we’d like to see applicable to individuals consenting to participate in pornography. On the other hand, the “vulnerability” to actions of others mentioned by O’Neill may be of some relevance to the instant case.

    I raise these points for discussion: I have no idea at the moment how our responses may play out in the legal realm.

  4. What do you mean by “supress” pornography? And how is advocating the regulation of pornogrpahy “censorship”?

  5. Is it your assertion that MacKinnon is in favor of obscenity law?

  6. Did you read the document here?
    http://www.nostatusquo.com/ACLU/dworkin/OrdinanceCanada.html
    It is hardly a “press release.”

  7. And “Queen of Hearts”? Why the sexism?

  8. I thank Patrick O’Donnell for his thoughtful comment on consent.  I agree that we must seek to achieve a society in which every person is morally autonomous in a meaningful sense, and that law has an important role to play here.

    In response to the comments of “csb”:

    1.  As the Supreme Court has recognized, unconstitutional censorship is not limited to prior restraints and criminal prohibitions.  MacKinnon’s approach to “pornography” is unconstitutional as a form of viewpoint discrimination, as the Court of Appeals found in Hudnut.  It also does impose prior restraints, as Judge Barker ruled in that case.

    2.  MacKinnon says favors restrictions on “pornography” rather than “obscenity.”  But she praised the Canadian Court’s approach in Butler, which conflates the two.

    3. I think you need to re-read the document you refer to yourself.  You say “It is hardly a ‘press release,'” but at the top of the document itself it is described as a “press release.”

    4.  The “Queen of Hearts” is the character in “Alice in Wonderland” who said that the sentence should come first, and the trial second.  But I was thinking of the character who said “When I use a word, it means just what I choose it to mean–neither more nor less.”  It turns out that that was Humpty Dumpty in “Through the Looking Glass.”  So I stand corrected, and will change “Queen of Hearts” to “Humpty Dumpty.”  As Humpty Dumpty was a male, I hope you will no longer find this sexist.

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