The Ethical Spectacle, July 1995,

Speech versus Equality on the Internet

The Internet sometimes resembles a laboratory demonstration of brownian motion as different viewpoints, personalities and technologies collide and bounce off one another. Among the molecules colliding on the Net right now are Professor Catherine Mackinnon, John Stuart Mill, the First Amendment, and the Fifth and Fourteenth Amendments.

Prof. Mackinnon stands for the proposition that pornography undermines and marginalizes women, both in public life and private relationships. It promotes hostility and violence by proclaiming that women are inferior and passive, complicit in their own exploitation.

John Stuart Mill advanced the idea that the government should only intervene in in human behavior when that behavior harms other people. If the person acting harms only himself, there is no ground for intervention, no matter how disgusting and immoral the actor is and how badly he is affected by his own deeds. Free speech advocates have used Mill's doctrine of liberty to claim that pornography, at most, only degrades the individual who uses it. Therefore, government may not regulate it.

Mackinnon would claim that she has no conflict with Mill. Contrary to the civil libertarian position that pornography is essentially harmless, Mackinnon holds that pornography must be regulated precisely because of the effect it has on women (both those who unwillingly see it, and those affected by the behavior of the men who use it.)

Mackinnon has called to public attention the collision of the Constitutional amendments dealing with speech (the First) and with equality (the Fifth and Fourteenth). According to the First Amendment, freedom of speech is almost absolute, even when the content of the speech is racist, murderous or otherwise despicable. The Fifth and Fourteenth Amendments, however, hold that under certain circumstances, freedom of speech must stand aside when it conflicts with equality. Thus, the posting by an employee of obscene or racist materials above his desk, though speech, may be prohibited because of the hostile environment these acts create for women or minorities.

As Mackinnon points out, courts have made little attempt to reconcile the apparent conflict between speech and equality. Behavior that is now banned in the workplace is not only acceptable but protected in other contexts. Yet the effects on individuals of being subjected to pornographic or racist materials against their will are not less outside the workplace.

Civil libertarians, of course, make much of the "slippery slope", the idea that if any speech is regulated (other than that which already is, of course) we will embark on an inexorable slide into a dictatorship regulating all speech. In order to take this position as far as they do, civil libertarians must turn a blind eye to the same groups they would rush to protect in other situations. Too much flows from how a case is characterized; how civil libertarians and the courts will react seems to depend more on the label that is applied at the outset-- speech or equality--rather than the actual substance of the case.

The civil libertarian knee jerk reaction on pornography is that the latter is either liberating, or, at worst, is only harmful to oneself. If it is valuable expression, it cries out for protection; if it is self-regarding only, Mill mandates that it must not be regulated. Such rationalizations ignore the obvious: our popular arts, the media and daily speech all deny that violence against women is really violence. There is much that not only denies, but which glorifies violence. Enter any video store, or watch the new "erotic thrillers" on cable TV. Or simply go to see films like Interview with the Vampire. Movies used to titilate male audiences with the threat of violence to the heroine, then relieve everybody with the villain's punishment. Now audiences get to enjoy the rape of the heroine and the punishment of the villain--if he doesn't get to live free and continue killing, as in Vampire. Very few movies lack a scene where a woman is harassed or molested, either so that the hero can rescue her and meet her (City Slickers), or, if she is a bit player, so that the hero can rescue her and prove he is a good guy (The Specialist). In any number of movies, a woman is molested, raped or murdered just to illustrate that the villain is evil (Batman Returns). Allright, now turn from this fictional world in which women are constantly being sexually molested to the real world--in which the same is true. Women cannot walk alone at night where men can; women sometimes cannot walk down Manhattan streets in broad daylight without being sexually harrassed. We should not need hard sociological evidence to know that all of this molestation exists on a continuum, with popular culture feeding life and life returning the favor. Violence against women is in the air. Civil libertarians who deny that pornography (virtually all of which objectifies women and much of which itself is violent) contributes to violence, have a massive moral blind spot. Not everyone steeped in this kind of material becomes a Jake Baker; but it sure helps.

Much of the Internet community has insisted on treating the Baker case as a speech, not an equality issue. This ignores the fact that a real human being, a woman, at the University of Michigan, suffered fear and anxiety from finding herself portrayed as a rape and murder victim, under her own real name, in Baker's story.

Morality and the law are not coextensive. As Mill observed, many immoral acts should not be illegal, but society (as a collection of individuals, not as a government) condemns and even stigmatizes them. Jake Baker's story was an immoral act, inflicting fear on and limiting the freedom of another human being. Baker clearly enjoys contemplating the fear and suffering of women. Similarly, videos and GIF's offered by the Amateur Action sysops glorified rape and violence (in one, the sysops boasted, viewers would see a woman's vagina nailed to the floor). Per Mackinnon, such images infringe on women's freedom to go about in the world, develop self respect and grow as fulfilled human beings. I think she is right. The law has not seen fit to agree, just yet, that these images have an effect; but it would be a mistake to reason backward and say that just because something is legal, it is right.

Yet the people who have rushed to Jake Baker's defense have done exactly that. By characterizing the case solely as a free speech issue, they have, like most civil libertarians, completely ignored the presence of a victim in the vicinity. Those who do not believe even that the University should have taken disciplinary action should ask themselves if they are in fact championing a right to frighten women and make them feel vulnerable and inferior.

Should there be laws against Jake Baker's story, and the Thomases' GIF's? Mackinnon says, unequivocally yes, that equality will not happen without legal protection, just as slavery would never have ended without intervention. I rely on the struggle for racial equality in America to say that I hope such laws are not necessary. I have said before that all problems are most effectively solved upstream; all rivers begin in the human heart. Our culture condones violence against women that it would not condone against any other group or class because it simply does not recognize it as really being violence. Our movies could not portray blacks or Jews being treated they way women are routinely treated in films. And this is not because of the intervention of any law, but because society knows that this is not acceptable. When we have made violence against women equally unacceptable, then we will see what laws are necessary.