Drawing lines

Bernard Williams

  • Only Words by Catharine MacKinnon
    HarperCollins, 128 pp, £9.99, June 1994, ISBN 0 00 255497 6

Best known as an eloquent campaigner against pornography, Catharine MacKinnon is a lawyer – a Professor of Law at the University of Michigan Law School. Not all of this book (based on talks given at Princeton) sounds much like legal argument, and particularly when she is talking about pornography she gives a rhetorical display which may well have been breathtaking in the lecture hall. But the book does in fact offer a legal argument, one which is interesting, and also deeply American, in the sense that MacKinnon discusses the problems raised by pornography and also by speech that constitutes sexual or racial harassment in terms of American law and the American Constitution. MacKinnon herself does not accept those terms as presently defined, and her book is an eloquent plea to Americans to move beyond what she sees as the prejudiced limitations of current doctrine, in particular of current liberal doctrine. As a plea to Americans, it takes for granted several aspects of American discussions. Some of this a British reader may find rather bewildering.

The First Amendment to the US Constitution protects ‘freedom of speech’; this has been interpreted in a robust way that makes it quite difficult to ban anything. There are some provisions to restrict pornography, in particular to make child pornography illegal, but hard work has gone into generating the rather shaky formulae that support the restrictions. Some of those who do not want pornography to be Constitutionally protected have tried to argue that it does not count for the purposes of the Constitution as ‘speech’. This is not because it now more often consists of pictures than words – a great deal of Constitutionally recognised ‘speech’ is not verbal. The claim is, roughly, that pornography is not ‘speech’ because it does not convey ideas: it is designed to produce erections rather than opinions. But this line has not found much favour, particularly with liberals. While most pornography conveys no ideas, some expressions that convey ideas may be thought pornographic (a mild case is a jacket of the Vietnam War era, often mentioned in the literature, which said ‘Fuck the Draft.’) More generally, it is hard to draw a line between different types of expression, with respect to their form, or their intentions, or their effects, and proclaim that some and not others count as the ‘speech’ which the First Amendment protects.

This is a point, then, at which liberals do not want to draw a line, and in order to understand some of what MacKinnon says, in particular some of her more vituperative asides, one has to see that she is attacking them on this score. MacKinnon does want to draw a line here. Since she wants the law to suppress pornography (or at least to provide remedies to those who have complaints against pornography), but does not want to suppress political argument on sexual subjects, she needs a distinction between more and less argumentative forms of expression.

While liberals are not keen to draw a line by distinguishing a kind of expression that is (so to speak) less than speech, they do need to distinguish what is ‘merely’ speech from what is more than speech – that is to say, from action. The First Amendment protects speech, argument, the exchange of ideas, and that includes obnoxious ideas, for instance of a racist character; but it does not protect hostile actions designed to intimidate people of another race. The extremely obvious problem is that some speech acts just are intimidating acts of that sort; or, to put it the other way round, some acts of an intimidating kind take the form of ‘mere’ speech, produced in some specific circumstances to a specific audience. In the case of political speech or anything that might conceivably be construed as political speech, the prevailing interpretations of the First Amendment go to remarkable lengths to protect the speaker, rather than the people whom the speech is intended to insult. In 1978, the American Nazi Party proposed to hold a march in Stokie, Illinois, a site chosen because many Jewish Holocaust survivors lived there. This demonstration was legally held to be protected speech, a decision upheld by the Supreme Court (Justice Blackmun dissenting).

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