Catharine Dworkin - Pornography and Civil Rights - A New Day for Women's Equality

The Ordinance

Statement of Policy

The statement of policy that begins the Minneapolis Ordinance capsulizes its legal approach: Pornography is sex discrimination. It exists in Minneapolis posing a substantial threat to the health, safety, peace, welfare, and equality of citizens in the community. Existing state and federal laws are inadequate to solve these problems in Minneapolis.

Pornography is recognized as a practice of civil inequality

on the basis of gender, posing the threats to its target population that al socially institutionalized inequalities do. This clause also recognizes the obvious fact that, while many of the

acts that make up the distinctive harms of pornography are

formally illegal, no existing laws are effective against them. If

they were, pornography would not flourish as it does, and its

victims would not be victimized through it as they are. Lawyers

seeking to protect pornography often become extremely ingenious in inventing legal theories that they insist already cover all serious harms of pornography—legal theories they

seldom intend to try to make work, by the way.

In fact, no laws now permit those victimized by pornography

to sue the pornographers for the pornography. So long as the

pornography can be made and sold, the harms of its making

and use wil continue, and the incentive to make it and sel it

wil continue. Obscenity laws have proven essentially unworkable against the industry—even with al the power at the disposal of federal, state, and local law enforcement, even in the hands of expert and committed lawyers. Zoning laws move some

of the harms of pornography from one district to another, but

do nothing to address them. Criminal laws exist against rape,

battery, assault, kidnapping, sexual molestation of children, and

many other acts that are standard practice in the pornography

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industry. The problem is, police and prosecutors and judges

and juries view the women in the materials the way the pornography does: because of what they are doing, they are not hurt by it. Consider also that the women in pornography are prostitutes, hence unlikely to find the criminal-justice system hospitable to their claims. Privacy laws also exist against commercial exploitation of image in some states. I n theory, these would seem

to protect some coerced models; in practice, they have proven

virtually useless. Some states provide special laws restricting the

use of a person’s image after they are dead—smal consolation

to the victim, one imagines. Attempts are being made through

sexual-harassment law to address pornography in the workplace; results are extremely mixed. Nothing addresses pornography forced on victims at home.

It is not unusual for civil-rights violations to include many

acts that the dominant group has previously recognized as injurious, just not in a way that is workable for the subordinate group. For instance, the acts comprising lynching and much

sexual harassment were formally illegal before they were recognized as abuses of civil rights, but until they were so recognized, nothing was done about them. Moreover, if laws currently addressed pornography through its harms to victims, such laws would be precedent for the Ordinance, not necessarily a reason it should not exist. This is only to say that the Ordinance cannot be both unconstitutional and legally redundant. But, in the real world, women who are abused through pornography have essentially made the same realistic assessment of their chances in the legal system that the legislatures who pass the Ordinance make: no laws now on the books are

likely to work because they have not worked. Defending the

legal status quo at a point like this is nothing but complacency

and complicity with human suffering.

Findings

When legislatures pass a law, they often tell courts what they

have learned and decided and why they are concerned about

the subject. Hearings, constituent letters, and documents usu32

Pornography and Civil Rights

ally substantiate these conclusions of fact and statements of intent, called “findings. ” Findings provide the factual basis for a law; they show the need and grounds for it. They also communicate to the courts that wil apply it what the legislature saw and wanted, and the spirit in which the law is to be interpreted. Courts, as a result, often look at findings to see what the legislature was trying to accomplish, taking findings as

authoritative evidence of legislative intent. Here are findings

similar to those passed by the Minneapolis and Indianapolis

city councils: *

Pornography is a systematic practice of exploitation

and subordination based on sex that differentially

harms women. The harm of pornography includes dehumanization, sexual exploitation, forced sex, forced prostitution, physical injury, and social and sexual terrorism and inferiority presented as entertainment. The bigotry and contempt pornography promotes, with

the acts of aggression it fosters, diminish opportunities

for equality of rights in employment, education, property, public accommodations, and public services; create public and private harassment, persecution, and

denigration; expose individuals who appear in pornography against their wil to contempt, ridicule, hatred, humiliation, and embar assment and target

such women in particular for abuse and physical aggression; demean the reputations and diminish the occupational opportunities of individuals and groups on the basis of sex; promote injury and degradation such

as rape, battery, child sexual abuse, and prostitution

and inhibit just enforcement of laws against these acts;

contribute significantly to restricting women in particular from full exercise of citizenship and participation in public life, including in neighborhoods; damage relations between the sexes; and undermine women’s

* For the exact text of both Ordinances, see Appendix A (Minneapolis) and Appendix B (Indianapolis). Note that the findings here that support a claim for defamation through pornography had not yet been included in either Ordinance.

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equal exercise of rights to speech and action guaranteed to al citizens under the Constitutions and laws of the United States and [place].

In Minneapolis, where the Ordinance was first introduced in

late 1983, the City Council held public hearings to inquire into

the ef ects of pornography and to provide the basis for a civil-