Free Speech--Or A Hostile Act?

IF GOOD PUBLICITY MEANS they spelled your name right, it's been a good few weeks for feminist legal scholar Catharine MacKinnon. She's hailed (and vilified) as the brains behind a 1992 Canadian Supreme Court ruling that pornography deemed harmful to women can be banned; depending on whom you believe, the ruling has challenged a reign of terror against women or caused a reign of terror against writers. And MacKinnon's new book Only Words (152 pages. Harvard. $14.95), which equates porn with rape, has provoked a much-reported dustup with critic Carlin Romano, whose attack in The Nation began on a calculatedly offensive note: "Suppose I decide to rape Catharine MacKinnon before reviewing her book."

In his hypothetical fantasy, Romano ends up only writing about raping MacKinnon, but he's still arrested--parodying her notion that "to say it is to do it." It's a gambit as old as Swift's "A Modest Proposal"--and as new as the beginning of "Only Words," where MacKinnon asks readers to imagine their fathers holding them down to be raped and their husbands dripping hot wax on their nipples. By last week The Nation had gotten nearly 60 letters; the magazine's usual controversy gets seven or eight. MacKinnon's lover, maverick psychologist Jeffrey Moussaieff Masson (be of the legal wrangle with The New Yorker's Janet Malcolm) wrote to Romano, "If there is ever anything I can do to hurt your career, I will do it." Free-speech stalwart Nat Hentoff jumped in--on MacKinnon's side, claiming Romano "set out to debase [her] person, along with her ideas." In Manhattan, where folks fret over keyboard fisticuffs, "Only Words" jumped off the shelves.

If MacKinnon's ideas gain ground, anyone who values the First Amendment has reason to fret. She writes that "the law of equality and the law of freedom of speech are on a collision course in this country"; she's helped make it so. Her argument is seductive: that stopping real harm to real women is more important than protecting smut as "free speech." For MacKinnon, pornography isn't "speech" at all: it's a hostile act, a violation of women's civil rights. But though porn may indeed contribute to a climate in which women are subordinated, it's hard to spell out how without the polemical vagueness that makes rousing speeches and lousy law. As Leanne Katz, head of the National Coalition Against Censorship, wrote in a recent New York Times op-ed piece, "What is to be considered 'degrading'? And who decides?" MacKinnon advocates laws defining pornography as "graphic sexually explicit materials that subordinate women." But she adds that this definition "is coterminous with" such a magazine as Playboy because in it "women are objectified and presented dehumanized as sexual objects or things for use." The same could be said of fashion advertising; why not just criminalize bad attitudes?

In 1985, Indianapolis adopted a MacKinnonesque ordinance banning sexually explicit depictions of the subordination of women. An appeals court said it violated the First Amendment, and the U.S. Supreme Court agreed. But in 1992, Canada's Supreme Court held that while the Canadian Charter of Rights and Freedoms grants freedom of expression, "portraying women as a class as objects for sexual exploitation" could be banned for its "negative impact on the individual's sense of self-worth." MacKinnon helped write the brief that carried the day; the U.S. press played it as her victory. "It's an amazingly arrogant attitude toward Canadian feminists," says MacKinnon's colleague Andrea Dworkin, "who after all made the argument."

Such free-speech advocates as Katz say the Butler ruling (so called for the original defendant) sparked "an explosion of censorship." True, Canadian customs has lately seized not just hard-core porn but books by such serious writers as David Leavitt--and Dworkin, whose "Pornography" was itself briefly mistaken for porn. But MacKinnon says that such seizures have gone on for years and that the Butler ruling has had no direct impact. "The only reason we're having this conversation," MacKinnon told NEWSWEEK, "is that Butler had to be attacked...The court said that harm to women is harm to the Canadian community...Obviously the pornographers are worried or they wouldn't be spreading these false accounts...It's clear that they do sit around in rooms and figure out how to try and discredit what we're doing and destroy our credibility."

It's all too familiar: seeing adversaries as conspirators, using the media to charge that they're using the media. So what did the porn cabal offer Carlin Romano--the editorship of Juggs? Something must explain why a smart critic used a rhetorical tactic likely to put off even many free-speech absolutists. "I stand by the review," says Romano, book critic at The Philadelphia inquirer. "Some people say I dehumanized her. I think I did something worse: I took her seriously. The worst thing that can happen to a flamboyant claim is to be tested by a good example." Romano--known for his own flamboyance--calls MacKinnon "a very cagey publicist in pursuit of her cause." He can't say she hasn't had help.