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Violence Against Women on the Internet

Constitutional Language

MacKinnon's essay and Russell's research explicitly detail pornography's harm and its relationship to violence against women. While the courts have recognized the harm pornography causes to children (with the virtual child pornography case as an exception), the legal system and our cultural structures more generally have not expanded that notion of harm to analyze the repercussions of the existence of pornography on women's lived experiences. Furthermore, discussions about pornography's harm have often been silenced by discussions about free speech and The First Amendment. Proponents of this perspective assert that eradicating pornography is akin to censorship. But, the prototypical pornographic item shares more of the characteristics of sexual activity than of the characteristics of the communicative, emotive, or artistic processes. Pornography is a sexual surrogate. Pornography as action rather than speech is an important distinction to make when considering whether regulation of pornographic materials is allowed by the First Amendment. Consider Frederick Schauer's perspective on this definitional and empirical issue that undergirds much of the pornography debate:

Speech and "Speech" - Obscenity and "Obscenity": An Exercise in the Interpretation of Constitutional Language, by Frederick Schauer; 67 Geo.L.J. 899 922-923 (1979)

[Pornography] takes pictorial or linguistic form only because some individuals achieve sexual gratification by those means.

Imagine a person going to a house of prostitution, and, in accord with his or her particular sexual preferences, requesting that two prostitutes engage in sexual activity with each other while he becomes aroused. Having achieved sexual satisfaction in this manner, he pays his money and leaves, never having touched either of the prostitutes. Imagine an individual who asks that a leather-clad prostitute crack a whip within an inch of his ear. Are these free speech cases? Hardly. Despite the fact that eyes and ears are used, these incidents are no more cognitive than any other experience with a prostitute. It is essentially a physical activity, the lack of actual contact notwithstanding.

If the above examples are not free speech cases, is there any real difference between the same activity when presented on film rather than in the flesh? Consider further rubber, plastic, or leather sex aids. It is hard to find any free speech aspects in their sale or use. If pornography is viewed merely as a type of aid to sexual satisfaction, any distinction between pornography and so-called "rubber products" is meaningless. The mere fact that in pornography the stimulating experience is initiated by visual rather than tactile means is irrelevant if every other aspect of the experience is the same. Neither means constitutes communication in the cognitive sense. Pornography involves neither a communicator nor an object of the communication. The purveyor of the pornography is in the business solely of providing sexual pleasure; it is unrealistic to presume that he is anything but indifferent to the method by which pleasure is provided and profit secured. Similarly, there is no reason to believe that the recipient desires anything other than sexual stimulation. Hardcore pornography, then, is distinguished by its similarity in all relevant respects to a wide range of other sexual experiences.

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