Any debate about pornography is really a debate about morality and law.
Most people seem to think morality and law are co-extensive, or that they should be. If something is bad, it should be against the law.
In fact, the law does not function this way. Very many immoral actions are perfectly legal. You can relax and watch somebody else's child drown in a shallow puddle ten feet away without lifting a finger to rescue him, and you won't have broken any law. But you certainly will have committed a horrendous action.
John Stuart Mill says that government should only intervene to prevent or punish "other-regarding" actions. In plain English, the state should not try to stop you from squandering your money or your health, engaging in stupid, futile or even immoral actions, unless you are about to harm someone else as a result. The U.S. Constitution does not completely agree with Mill--if it did, you wouldn't have to wear a seat belt--but confirms his idea of liberty almost entirely as far as speech is concerned. Only obscenity, libel and fighting words are banned, all three because there is a victim. For any other type of speech--including the non-obscene pornographic, the indecent, hate speech, and bomb recipes-- the First Amendment has always been held to mean that you can say anything, that the only antidote for bad speech is good speech.
The Ethical Spectacle is my attempt at good speech. Every month, I present my criticism of those forms of speech I believe are harmful to us (those that promote inequality, hypocrisy, double standards, and a lack of compassion.) But I do not call for their censorship. I don't believe the law should exactly mirror my ideas of right and wrong, even though I am arrogant enough to think most people would share my views if they really thought things through. The tyranny of the majority, of course, is as much to be feared as that of the minority. Urgent new proposed restrictions on speech--whether they are Mackinnon's or Senator Exon's-- are morally wrong, even when proposed to serve good goals, like Mackinnon's. And they are also not permitted by the First Amendment.
McElroy and Strossen believe that there should be no obscenity laws. Though there is no realistic chance that Congress or the courts will adopt this view any time soon--things are going to get worse, not better-- I reluctantly conclude that they are right.
As a pragmatist, I would fight and lobby today for a more realistic goal-- holding the line against any expansion of pornography law or the creation of new indecency laws such as the CDA. But, if I ran the zoo, I would have to say that the law, (a sledgehammer) must stay out of the business of deciding which pornography is bad (which requires a surgical fineness of judgment).
The conviction of the Amateur Action sysops does not really bother me from a moral standpoint. They dealt in rape and torture pictures that are explicit, violent and grotesque. The worst, as I have mentioned before, was a close-up of a vagina nailed to a table. Assuming that this is not a photo of an actual assault, than a woman (a masochistic one) agreed to pose for this picture. If we adopt Mackinnon's view that women should not legally be permitted to consent, we turn them into children. Mill's view of liberty may have extended so far as to protect people who wish to have nails hammered into themselves. However, if the law wishes to intervene and prohibit self-mutilation, I have no problem, ethical or legal.
But this is not what we are dealing with here. Robert Thomas, the Amateur Action sysop, was not accused of hammering a nail into someone. He was accused only of distributing the picture. To convict Robert Thomas, we must again ask who his victim was. Miller answers, all of us. How are we hurt? We are hurt, the prosecution replies, by being shocked by the picture. No, this is how we react, not how the picture causes damage. What is it about the picture that shocks us? The only answer to this question is Mackinnon's: we are shocked because the picture glorifies, therefore advocates, violence against women. But, if we can outlaw this picture because of its advocacy, why must we permit distribution of the Turner Diaries, which advocates the murder of people like me, or bomb manuals, which advocate the making of bombs?
The First Amendment protects all advocacy as speech and does not allow any content-based discrimination. Obscenity laws are a contradiction, impossible to justify. They embody a double standard, carving out offensive sexual speech as unprotected, while allowing other types of offensive speech--violent and racist--to be sheltered by the First Amendment. The statement that the Supreme Court has made, which Mackinnon enthusiastically endorses, that obscenity is not speech at all, is an excuse, not an explanation.
Allowing even more censorship, as Mackinnon, Exon and others would have you do, is very dangerous. First, even a law much less vague than the CDA would sweep in much valuable speech that we should wish to preserve. I offer as my example the Mary's Place Web Pages. Ostensibly written by a woman and pitched both to men and women, these pages are a mixture of the sexually explicit (illustrated with photos purporting to be of Mary), sex education, health advice, and Mary's own self-expression. One article gives women advice on how to perform oral sex, with a graphic photograph. Another is a guide to breast self-examination for cancer, illustrated with the type of drawings you find in a brochure in the doctor's office. There is no doubt that, under existing Supreme Court law, Mary's pages are not obscene: even if prurient and patently offensive, they have some scientific, artistic and even political value. Whether you agree or disagree--whether you think Mary's Place is liberating, degrading, or just plain sinful--this is what the law clearly says. But there is equally no doubt that under the CDA, a jury would be able to find Mary's pages indecent, sending her away for two years. Personally, I prefer to live in a country where my morality is my own business, as determined by Jefferson, Madison and Co., than one in which my morality is the business of Senator Exon, or worse, of Pat Robertson.
Second, there is the issue of the continually shifting line, or, as the ACLU would have it, of the "slippery slope." Judges and prosecutors frequently comment that they feel no sorrow for a defendant who deliberately sailed close to the line, only to find he is on the wrong side of it. But pornography laws, with their confusing morass of local standards, are designed to obscure the exact location of the line. Each of us should be entitled to pursue free speech to the very outer limit of the First Amendment. When it is said that someone wound up on the wrong side, what is really being said in most cases is that the judge or jury saw fit to redraw the line in this case. And that means that someone else who thought he was a foot or two away from the line, is right on it. And is the next in line to find himself on the wrong side. The only way to fight this is to nail the line in place and let it slide no further.
Susan Sontag had the final word on pornography in her 1967 essay, The Pornographic Imagination:
If so many are teetering on the verge of murder, dehumanization, sexual deformity and depair, and we were to act on that thought, then censorship much more radical than the indignant foes of pornography ever envisage seems in order. For if that's the case, not only pornography but all forms of serious art and knowledge--in other words, all forms of truth--are suspect and dangerous.