Response by Professor Ann Bartow, “Obscenity and Community Standards”

I was asked to respond to Bret Boyce’s recent article, published in the Yale Journal of International Law and entitled “Obscenity and Community Standards.” My one sentence summary of his thesis is this: Pornography is private sexual expression with which legislatures and courts should not interfere. Although this article was published in a forum dedicated to international law, it doesn’t discuss international law at all. There are many salient aspects of international law the author could have engaged with, particularly related to sex trafficking, which is profoundly linked to pornography production as well as prostitution. But since part of his goal was to dismiss harms associated with pornography production, he ignored them. Catharine MacKinnon has drawn these important connections in Pornography as Trafficking, a chapter in her recent book: are women human? And Other International Dialogues.

The article would have benefited from clear definition of what Boyce means by censorship. Throughout the piece, he conflates erotica, pornography, and obscenity without differentiating between works that do not require the direct participation of human performers, such as written material, and works that clearly do, such as films of people engaging in sexual acts. Efforts to address the harms inflicted on people during pornography production apply only to the second category of works, so the distinction is important.

Nor does he analytically distinguish between words and pictures. But the federal government often does. The most censorious law the U.S. government has successfully implemented in recent years, the Children’s Internet Protection Act, restricts its reach to “any picture, image, graphic image file, or other visual depiction” that is harmful to minors. Sociologist and researcher Diana Russell noted almost a decade ago that proponents of the anti-pornography-equals-censorship school deliberately obfuscate any distinction between erotica and pornography, and Boyce adopts this tactic.

Boyce critiques 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. I am mostly in accord with many of Boyce’s general criticisms of U.S. obscenity law, which track to a surprising extent some of the objections Catharine MacKinnon raised over a decade ago in her essay Not a Moral Issue (published in her book Feminism Unmodified, and in Applications of Feminist Legal Theory to Women’s Lives by D. Kelly Weisberg). I agree that the concept of obscenity as a legal construct is far too ambiguous to be a legitimate or just basis for criminal sanctions or civil liability. I also agree that it is highly unlikely that a judge or jury could fairly and consistently delineate a defensible description of “community standards.” And I certainly agree that obscenity law has been used against women, sometimes in contexts such as dissemination of information about birth control, and the breastfeeding of babies in public. I don’t know a single feminist legal theorist who embraces obscenity law or the Miller test as effective or just mechanisms to regulate pornography. Catharine MacKinnon explained:

Nothing in the American law of obscenity is designed to perceive the rape, sexual abuse of children, battering, sexual harassment, prostitution, or sexual murder in pornography. This becomes insulting upon encountering obscenity law’s search for harm and failure to find any. The law of child pornography, by contrast – 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 speech outweighs its value, it can be restricted by properly targeted means. Given the history of the law of pornography of adult women, it is tempting to regard this as a miracle. Child pornography is not considered the speech of a sexually dissident minority, which it is, advocating “ideas” about children and sex, which it does (Catharine MacKinnon, Only Words 91 (Harvard University Press 1993)).

Obscenity law puts the entire focus on the assumed effect that a work has upon the morals or morality of consumers. It cares not at all about harms visited on people during pornography production. Ironically, given his other criticisms, Boyce’s article echoes these priorities. His analysis of harm focuses extensively on the consumption of pornography, and only briefly on its production, which was the focus of MacKinnon’s pioneering legal analysis. The infliction of physical injuries, and the rampant spread of sexually transmitted diseases including HIV due to widespread demands for unsafe sex practices during pornography production are not discussed by Boyce. Nor are the high rates of substance abuse and suicide among performers. He does not engage with any of the scholarly work on this subject at all, nor even the cultural evidence (he could have consulted one of a number of scholarly works, including Sheila Jeffrey’s new book, The Industrial Vagina).

The late (and much missed) David Foster Wallace devoted a chapter of his book Consider the Lobster to the pornography industry circa 1997, writing:

The thing to recognize is that the adult industry’s new respectability creates a paradox. The more acceptable in modern culture it becomes, the farther porn will have to go in order to preserve the sense of unacceptability that’s so essential to its appeal…. Whether or not it ever actually gets there, it’s clear that the real horizon late-90’s porn is heading towards is the Snuff Film. It’s also clear, with all moral and cultural issues totally aside, that this is an extremely dangerous direction for the adult-film industry to have to keep moving in.

This comports with Catharine MacKinnon’s observation in Not a Moral Issue that greater efforts of brutality in pornography become necessary to eroticize the taboo, since the frontiers of the taboo keep vanishing as they are crossed. A recent review essay by journalist Don Hazen echoes these same concerns. The author Martin Amis wrote an account of pornography production that he called A Rough Trade. In it he quoted the assertion of one performer that everyone in the business contracts herpes. He also interviewed porn producers, one of whom explained that the less attractive women in pornography had to submit to more extreme things if they wanted to find work, stating:

Some girls are used in nine months or a year. An 18-year-old, sweet young thing, signs with an agency, makes five films in her first week. Five directors, five actors, five times five: she gets phone calls. A hundred movies in four months. She’s not a fresh face any more. Her price slips and she stops getting phone calls. Then it’s, ‘Okay, will you do anal? Will you do gangbangs?’ Then they’re used up. They can’t even get a phone call. The market forces of this industry use them up.

In 2001 a documentary about the production of pornography called “Hardcore” was produced by Stephen Walker. Below is an excerpt from an interview with Walker describing the negative effects of just being on the sets of pornographic film production:

The cost is clearest in Hardcore’s most intense sequence, which record Felicity’s unwilling encounter with Max Hardcore, a notoriously extreme porn star. After reluctantly agreeing to film with him (and ignoring Walker’s insistence, audible on the soundtrack, that she doesn’t have to), Felicity breaks off in tears, having been deliberately choked during an oral sex sequence. Walker found himself filming Hardcore’s attempt to persuade her to resume filming.

“It’s really easy, in retrospect, to look at something like that and say, ‘Oh, you should just get in there and clobber the guy.’ It’s actually not as easy as that. A number of conflicting things are happening at that point: at a very basic level you’re getting an amazing story on film ­ let’s be honest about that, you are. At another level, you want to record just what really happens behind the scenes. You know that it’s absolutely the kernel of your story and it’s criminal not to film it. At the professional level, you’re also in a house which is in the middle of nowhere, there are almost certainly guns around the place and there’s this guy who I think is actually psychopathic and you’re scared…”

Eventually, when his assistant producer Tessa Gogol pointed out that they were effectively about to film a rape, Walker stepped in, persuading Felicity not to continue and escorting her from the house. “I double-locked all the doors to the hotel room and put the rushes underneath my bed, and about three o’clock in the morning I rang my wife and ­ this sounds terribly silly ­ I completely broke down, I was in floods of tears. I kept saying to my wife, ‘I don’t know whether I did the right thing…’ Thank God I did it in the end ­ but I’m not at all sure that it was not too late.”

Only a few days later, Felicity agreed to take part in another extreme scene. Walker walked out after three minutes, by which time one performer was bleeding. It was at this session that the director ­ who refused to have his face filmed ­ boasted to Walker that he had offcuts from his films that made “Belsen look like a picnic.”

“Consent” is the only answer Boyce presents in response to concerns about harms inflicted by pornography production. Performers rarely meaningfully consent to be harmed. Boyce does not consider the economic coercion, drug dependency, psychological or physical coercion, eroticized racism, or the use of trafficked people who are filmed participating in coerced acts of prostitution that may have occurred during the production of any given work. Yet all he has to do to educate himself about these matters is open one of his hometown newspapers. Less than two weeks ago the Detroit papers reported that a local 60-year old man was sentenced to nearly 22 years in prison for sexually exploiting a 16-year-old developmentally disabled girl in 2004-05 to produce pornography. How many pictures of rape did this man “produce” as pornography? Over 1,000. If the rapist/pornographer had not come under suspicion for murdering two wives, he may never have been caught. Certainly no one uploading the pornography contacted legal authorities. People viewing the material, which will probably continue to circulate on the Internet for the rest of the young woman’s life, undoubtedly assume “consent” and refuse to consider any other possibility. Boyce doesn’t even raise, no less answer, any hard questions about how the popularity and profitability of pornography create incentives for sexual assaults like this one.

Boyce says at the very end of the piece, at page 368, that “Concrete harms, such as coercion or the exploitation of children, may be punished under legal doctrines prohibiting such conduct without resort to the concept of obscenity.” But when are they? Working backwards, I’d like to know when obscenity law was ever used to address coercion during the production of pornography. But more importantly, I’d like to know in what parallel universe a pornography performer can call the police for assistance if she is wronged, and realistically expect anything other than an arrest for prostitution.

Pornography production is almost completely unregulated, beyond a requirement that the names and ages of performers be ascertained and retained, as I have explained here. This puts the industry in a position of great privilege as compared to producers of mainstream movies and television shows. One filmmaker, reflecting on HIV infections among pornography performers noted:

When I shot a scene for Nothing So Strange in which a character gets shot in the head, the action required a “squib” explosion: The effects artist put a metal plate on the back of the actor’s head. On top of that plate went a small explosive charge. On top of that charge went a grisly packet of fake blood, brains and hair. At the appointed time in the action of the scene, the effects artist pushed a button to trigger the explosive, and, boom, big old mess.

In order to shoot this scene legally (which I did), I had to hire a pyrotechnician licensed by the state. I also had to hire a county fire marshal, who monitored the pyrotechnician and had the authority to stop any behavior deemed unsafe. If you add in the city cops I was legally required to retain for crowd control, the actors and crew on my set had three levels of protection provided by government agencies.

If, in my zeal to get a better scene, I had tried to persuade the pyro to make the explosive charge larger than was safe, he probably wouldn’t have done it–his license would have been at risk. If he decided to take the risk to please me (perhaps so I’d hire him again), the fire marshal was there to keep him honest. And if I tried to stage the scene in another way that put the actors or crew in danger, the police officers present would have stopped me.

[18 year old] Lara Roxx had zero protection by government agencies. There was no cop on that set. No fire marshal. No doctor. Nobody had a license. And nobody broke the law by paying a teenager to accept the uncovered penises of two men into her anus.

Pornography production is accorded far more deference from government regulation than any other industry. Why is that, exactly? Child pornography is illegal for the protection of children, but the moment she turns 18, a woman can be made to eat human feces, and do things that will virtually guarantee that she contracts an incurable disease, and no one is concerned about her health or safety at all. At what workplace do we care so little about working conditions? People performing in pornography are forced to do things no one with other options would want to consider a job, and do not get even the basic legal protections an employee at a dangerous factory job might have.

Boyce characterizes the economic size of the pornography industry in the text at page 368 (and in fn 501 as well) 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, if at all, but he never really acknowledges this explicitly. The size of the industry and the current nature of the players virtually guarantee that the Justice Department will not be mounting campaigns of any significance against pornography, regardless of which party is in control of Congress or the White House. Beginning in the early 1990s, corporate America began to feel it was safe to enter the profitable porn market. AT&T bought up a cable company, and signed contracts with the Hot Network, which is a hardcore pornographic site; mainstream chain hotels like Hilton and Marriot began vending pornography to guests; and Yahoo and Google began reaping millions from providing services to pornography sites and pornography advertising. The man who derives the largest revenue stream from pornography is not Hugh Hefner or Larry Flynt. It is Rupert Murdoch, the Fox News mogul, marquee socially conservative Republican and owner of a majority interest in Direct TV and all of its lucrative pornography channels. The subsidiary’s previous owner and pornography profiteer was General Motors. The money pornography generates for large corporations is arguably why the Justice Department only brought a handful of obscenity indictments during the eight years of the George W. Bush presidency, despite rhetoric about an obscenity crackdown, intended to mollify the religious right (Professor Timothy Wu observed here that “George W. Bush is perhaps the most religiously conservative U.S. president in history. Yet his administration, despite its rhetoric, is looser on mainstream porn than Jimmy Carter or John F. Kennedy was”).

On the substance of Catharine MacKinnon’s theoretical positions, Boyce is completely inaccurate. For example, at page 341 he writes: “MacKinnon purports to be puzzled by the distinction between speech and conduct that underlies First Amendment jurisprudence. If pornography is protected as expression, she asks, why not rape and murder?” MacKinnon isn’t purporting to be puzzled. She is explaining that First Amendment absolutism, the view that whatever is expressive should be constitutionally protected, doesn’t explain why rape and murder, which are expressive, are not therefore protected. Her point is that just because rape and murder are expressive doesn’t prevent us from regulating them.

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. There are many women who identify as conservative who support keeping abortion legal, and equal rights initiatives as well. A woman does not have to be a liberal to be a feminist. In addition, Boyce is simply wrong about MacKinnon. I’ve already far exceeded the suggested 1,500 word limit this blog post was supposed to have, so let me address this final point with her words:

Together with politicians, journalists, and pornographers, judges left and right in the United States have also taken a single position on the sex discrimination law against pornography for the same reason: to make injury through pornography civilly actionable as sex discrimination violates the First Amendment. This convergence is not publicly decried as an unholy alliance or an abandonment of marginalized and powerless groups by the left. It is hailed as an objective reading of the law. In other words, when people converge without regard to left and right to support this law, their convergence is stigmatized as “strange bedfellows,” sinister and unprincipled, and attributed to the right. When forces align across left and right to oppose the measure, to silence violated women, and to bury recognition of their human rights, that is seen as a victory for the left, and moreover bipartisan, so it must be correct (Catharine MacKinnon, Pornography Left and Right, 30 Harv. C.R.-C.L. L. Rev. 143 (1995)).

Many so-called liberals who support health and safety regulations and fair labor practices in most contexts suddenly skew rabidly libertarian when it comes to addressing the harms done to performers during the production of pornography. They are the ones “in bed with the right,” and sleeping with the likes of Rupert Murdoch and his corporate cronies, not feminists who care about the well being of women.