By Catharine A. MacKinnon
Whilst is rape no longer a criminal offense? whilst it truly is pornography--or so First modification legislations turns out to claim: in movie, a rape turns into "free speech." Pornography, Catharine MacKinnon contends, is neither speech nor loose. Pornography, racial and sexual harassment, and hate speech are acts of intimidation, subordination, terrorism, and discrimination, and may be legally handled as such. merely phrases is a strong indictment of a criminal process at odds with itself, its First modification selling the very inequalities its Fourteenth modification is meant to finish. within the daring and compelling variety that has made her one in all our such a lot provocative felony critics, MacKinnon depicts a society stuck in a vicious hypocrisy. phrases that supply bribes or repair costs or segregate amenities are taken care of through legislations as acts, yet phrases and photographs that victimize and goal at the foundation of race and intercourse will not be. Pornography--an act of sexual domination reproduced within the viewing--is safe by means of legislations within the identify of "the loose and open trade of ideas." however the right challenge of legislations, MacKinnon says, isn't really what speech says, yet what it does. What the "speech" of pornography and of racial and sexual harassment and hate propaganda does is advertise and enact the ability of 1 social workforce over one other. slicing with surgical deftness via situations of harassment within the office and on collage campuses, via First modification instances regarding Nazis, Klansmen, and pornographers, MacKinnon exhibits that so long as discriminatory practices are secure as unfastened speech, equality could be just a observe.
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Claiborne Hardware explored the parameters of holding public speakers responsible for the consequences of their persuasive advocacy. Suppressed entirely in the piously evenhanded treatment of the Klan and the boycotters— the studied inability to tell the difference between oppressor and oppressed that passes for principled neutrality in this area as well as others—was the fact that the Klan was promoting inequality and the civil rights leaders were resisting it, in a country that is supposedly not constitutionally neutral on the subject.
But sex, with all its racial dimensions, wasjvhat was done. " What was done to Anita Hill, both in Clarence Thomas' office ten years before, and to a lesser extent in the Sen- r 68* ONLY WORDS ate chamber when she testified to it, was^sex happening/} It w a s / n o t s m ^ j £ ^ b e i r i ^ di$£US$&&TalkingafeauLsex canbesgeedh£bui^oj^ assault. Harassment that is, not sexual does its harm through its (content;''undermining equality, especially in universities", where the mind is the terrain of the equality i as well as the speech.
But Judge Posner was right about the connection between that case and protecting pornography as speech: their decision in Hudnut is wrong. That these tortured consequences result from the lack of an equality context in which to interpret expressive freedoms is clear from the fact that the same issues produced exactly the opposite results in Canada. Canada's new constitution, the Charter of Rights and Freedoms,56 9 8 ' ONLY WORDS includes an expansive equality guarantee and a serious entrenchment of freedom of expression.