I agree with Nadine Strossen's conclusion that a wide field of pornography should continue to be tolerated. But I don't agree with her implication that no hard-core pornography is really pernicious.
Strossen used to be a law professor, like Mackinnon; today she is president of the ACLU. Both are advocates. If Strossen woke up one day and found that she had come to believe that pornography is oppression, she could not say so and keep her job. Mackinnon wouldn't lose her job as a tenured professor at Michigan, but you will never hear her say that she has changed her mind and that free speech is more important.
Reading each book (Mackinnon's Only Words and Strossen's Defending Pornography) is like reading a brief that marshalls all supporting arguments and ridicules or ignores that which it cannot counter. Where Strossen goes astray is when she repeats the findings of writers like Wendy McElroy that "sex workers" are healthy, independent women who have made a lifestyle or professional choice. For example, Strossen says:
Some sex industry workers affirm their occupational choice in explicitly feminist terms, stressing that they find it empowering as well as enjoyable. (p. 186)
Some certainly do. You can find at least a few members of every population who defy the norms, usually for complicated reasons. Most criminals, for example, may be chaotic; and the existence of an orderly, calm, married middle class bank robber doesn't really disprove the proposition. Strossen, as lawyers do, throws in the stability and self-confidence of sex workers as an "Oh, by the way..." Her point is that if pornography laws are partly aimed at protecting the women who are "coerced" to appear in sex films, there really aren't any, and thus there is no-one to protect.
The rest of her argument--that pornography must be tolerated because there is no way to restrict some speech without getting on the slippery slope towards restricting too much speech and the wrong speech--is persuasive. She undercuts it by claiming that sex workers, in general, are just people who have made satisfying choices. Anyone who has walked down the street in New York, Paris or Amsterdam and seen emaciated, spaced-out prostitutes at work knows that this cannot be true. It is a self-delusion.
I have said elsewhere that the NRA is the ACLU's evil twin. Both have much in common; the NRA wants to deny any link between guns and violence; the ACLU wants to disregard any link between pornography and the subjugation of women. I would respect Strossen more if she said, "Pornography is bad, but we must not do anything about it, for the following reasons," and then moved on. But, as a lawyer, she must argue their are no victims.
Strossen's strongest point is that censorship, which in modern times sometimes gets in the door by promising to protect the disadvantaged, always does the opposite. In the previous essay, I mentioned the Canadian experience in applying Mackinnon's approach; most hard core male-oriented heterosexual porn has escaped notice, while gay and feminist porn gets seized at the border. But you have to look further back into history to see what can really happen. Part of the story is in Strossen's book, and more of it is in deGrazia's Girls Lean Back Everywhere. In 1873, a man named Anthony Comstock became the enforcer for a new organization called the New York Society for the Suppression of Vice. Comstock was given the powers of an agent of the Post Office, and travelled the country trying to root out obscenity and indecency wherever he found it. Not only was he responsible for banning books by Balzac, Zola, Freud and others in this country, he was responsible for the suicide of early sex education writer Ida Craddock and fourteen other women whom he hounded; his successor sent Margaret Sanger to prison for her birth control activities. All of these prosecutions and persecutions took place under the Postal Obscenity law passed after the Civil War; this law, somewhat amended, is still on the books today, and its continued vitality is shown by the fact that it was used last year to prosecute the sysops of the Amateur Action BBS.
Here is the explicit and shocking sentence which caused the banning of Radclyffe Hall's lesbian novel, The Well of Loneliness, in the U.S.:
And that night, they were not divided.
Later, obscenity and indecency laws were used to ban a Disney documentary that showed the birth of a buffalo, and another film that showed black and white children at play together.
At this point, you may be protesting that things were different then, and nothing like this can happen now. You are wrong. In the last few years, despite the common belief based on decades of case law that words alone cannot be obscene, a rap group has been prosecuted in Florida for its lyrics. Despite the Supreme Court's mandate that an explicit work cannot be obscene if it has scientific, literary, artistic, or political value, a museum curator in Ohio has been prosecuted for exhibiting the works of a famous dead photographer. Strossen's strongest point is that nothing is ever over and done with--there is no past invasion of our liberties which by its nature could not happen again. Without our constant vigilance, everything that has happened before will happen again. As we speak, there is a prosecutor somewhere in this country ready to use the obscenity laws to go after novels, poems, or Web pages, mentioning lesbian sex, or contraception, or abortion, the minute Congress or a higher court tells him he can. And he will have no problem finding a jury to convict. To paraphrase Pastor Niemoller, first they come for the hardcore pornographers, then they come for you. The ACLU's strategy is to fight the civil liberties battles on the beaches so they don't have to fight them in the cities.
The First Amendment says that Congress shall make no law abridging the freedom of speech. This means, as the Supreme Court has established, that no state may do so either, and no government action of any kind against speech is justified. The only exceptions are narrow: obscenity, libel, fighting words. The only cure for bad speech is good speech. There are a lot of people in America today who have forgotten this or, perhaps, never believed it. The standards that Senator Exon's Communications Decency Act would set, for example, would roll the clock back 100 years, restoring the standards used in Comstock's time. Under the CDA, the statement "Fuck the CDA," posted here, could earn me two years in prison if found indecent under local standards by a jury sitting in the country's most conservative jurisdiction. Anyone who doesn't believe that we should fight even the slightest expansion of the existing obscenity law should get over to Thomas and read the Congressional Record for June 14, 1995, the day the Senate passed the CDA.
And that's why pornography must be tolerated.