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FOURTEENTH AMENDMENT HAS BEEN SACRIFICED TO FIRST AMENDMENT
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- MACKINNON’S CENSORSHIP WILL NOT IMPROVE WOMEN’S LIVES
- PORNOGRAPHY DOES NOT LEAD TO VIOLENCE AGAINST WOMEN
FOURTEENTH AMENDMENT HAS BEEN SACRIFICED TO FIRST AMENDMENT1. FOURTEENTH AMENDMENT RIGHTS HAVE BEEN SACRIFICED TO FIRST AMENDMENT Catharine A. MacKinnon, Prof of Law, Univ. of Michigan Law School, ONLY WORDS, 1993, p. 72. The subprovince of the First Amendment that resonates in equal protection is simply an unbiased extension of precedent and the rule of law—a narrow equality supporting a shallow speech. Fourteenth Amendment equality, for its part, has grown as if equality could be achieved while the First Amendment protected the speech of inequality, meaning whenever inequality takes an expressive form, and without considering equal access to speech as central to any equality agenda.
The law of equality and the law of freedom of speech are on a collision course in this country. Until this moment, the constitutional doctrine of free speech has developed without taking equality seriously—either the problem of social inequality or the mandate of substantive legal equality. Originally, of course, the Constitution contained no equality guarantee to serve as context, expansion joint, handmaiden, counterbalance or coequal goal to the speech guarantee. Yet the modern doctrine of speech dates from considerably after the entrenchment of equality in the Fourteenth Amendment, and still the First Amendment has been interpreted, with a few exceptions, as if it were not there. MACKINNON’S CENSORSHIP WILL NOT IMPROVE WOMEN’S LIVES1. MACKINNON’S CALL FOR CENSORSHIP HURTS THE FIGHT FOR WOMEN’S EQUAUTY Nadine Strossen, NQA, USA TODAY, January 12, 1995, p. np. The pro-censorship feminists have tried to distance themselves from traditional conservatives like Jesse Helms, who are less interested in protecting women than in preserving male dominance. But both groups are united by their common hatred of sexual expression and a fondness for censorship. This mutually reinforcing relationship does a serious disservice to the fight for women’s equality. 2. BANNING PORNOGRAPHY WILL NOT CREATE EQUALITY BETWEEN MEN AND WOMEN Pete Hammill, NQA, PLAYBOY, January 1993, p. np. But to think that banning pornography will bring about the political goal of eliminating human inequalities or hierarchies is absurd. The world has always been composed of hierarchies: the strong over the weak, the smart above the dumb, the talented above the ordinary. MacKinnon may not like the existence of those hierarchies (nor the liberal project of protecting the weak, the dumb and the ordinary), but they are unlikely to be changed by a municipal ordinance banning Three-Way Girls. 3. MACKINNON’S POLICY ON PORNOGRAPHY ACTUALLY HARMS WOMEN Nadine Strossen, NQA, USA TODAY, January 12, 1995, p. np. There is mounting evidence, however, that MacDworkinite-type laws will hurt the very women they are supposed to protect. In 1992, the Canadian Supreme Court incorporated the MacKinnon-Dworkin concept of pornography into Canadian obscenity law. Since that ruling, well over half of all feminist bookstores in Canada have had materials confiscated or detained by customs.
Nadine Strossen, NQA, USA TODAY, January 12, 1995, p. np. The pornophobia that grips MacKinnon, Dworkin and their followers has also led to a wasteful diversion from the real causes of and solutions to discrimination and violence against women. And, the “porn-made-me-do-it” defense, whereby convicted rapists cite MacKinnon and Dworkin in seeking to reduce their sentences, impedes the enforcement of laws against sexual violence. PORNOGRAPHY DOES NOT LEAD TO VIOLENCE AGAINST WOMEN1. NO PROOF EXISTS THAT PORNOGRAPHY CAUSES HARM Pete Hammill, NQA, PLAYBOY, January 1993, p. np. But there is one effect that it may have that the New Victorians cant admit. Rather than inspire men to loathsome acts, pornography may actually prevent them. For every rapist who is discovered to have pornography at home, there may be a thousand men who are content to look at the pictures, read the text, whack off and go to sleep. Nobody can prove this, but MacKinnon can’t prove that pornography creates monsters, either. 2. NO LINK EXISTS BETWEEN PORNOGRAPHY AND VIOLENCE AGAINST WOMEN Nadine Strossen, NQA, USA TODAY, January 12, 1995, p. np. The pro-censorship feminists base their efforts on the largely unexamined assumption that ridding society of pornography would reduce sexism and violence against women. But a casual connection between exposure to pornography and the commission of sexual violence has never been established. The National Research Council’s Panel on Understanding and Preventing Violence concluded that “demonstrated empirical links between pornography and sex crimes in general are weak or absent.”
Pete Hammill, NQA, PLAYBOY, January 1993, p. np. But there is no proof that pornography—even as defined by MacKinnon and Dworkin—causes all human beings to act upon the bodies of women. As MacKinnon herself points out, pornography is essentially an aid to masturbation. And as Gore Vidal once wrote, masturbation is “normal” sex, in the sense that it is surely the most frequent practice among all the world’s billions.
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