June 3, 1998
In comparing the issues surrounding the distribution and depiction of pornographic and racist materials, very few differences, if any, can be derived from the two. Besides the obvious differences in which one form appeals itself to the adult community and the other to the racist community, the two extremes, nonetheless, fall under a much broader category. They are both recognized and valid forms of speech, and as such are equally entitled to the same constitutional protection provided by the freedom of speech clause of the First Amendment as are various other legitimate forms of speech.
In the situation provided before us, we are asked to determine whether an individual should possess the right to distribute racist films graphically depicting whites verbally abusing, beating, and urinating upon blacks. My immediate response to the question would undoubtedly argue that such morally offensive material should not be allowed constitutional protection. The mere mentioning of such a proposition strikes anger at the heart of moral conscience. But, my moral convictions are not, nor are anyone else's for that matter, sufficient grounds to deny anyone their First Amendment right to freely engage in the distribution of such material if they so desire to do so. Moreover, the First Amendment clearly dictates that Congress shall make no law... abridging the freedom of speech. Thus, as a long established and highly empowered legal doctrine, it must ultimately be respected by the government to the fullest extent. The First Amendment does not state, nor does it imply, that only specific forms of speech which are morally just shall be free of governmental interference, while other forms believed to be offensive to social morality, such as pornography or racist films, shall not enjoy such a privilege. If that were to be the actual case, "freedom of speech," which has long been revered by our nation as one of the fundamental liberties of American history, would further cease to exist. All that would have to be proven to restrict speech would be that the message being expressed contains the slightest mention of morally offensive content. Fortunately, however, the freedom of speech clause grants people the power to convey their opinions in the manner which they deem fit. Thus, if the owner of a video store chooses to sell videos in which African-Americans are repeatedly verbally and physically abused, then ultimately his right to do so must be respected. To ignore that given right solely because the material's content is derogatory is not permitted under the eyes of the Constitution.
Joel Feinberg states that the freedom of speech clause of the First Amendment is not, however, entirely free of restrictive governmental action. He argues that there are essentially two methods which could be applied as an attempt to restrict, or in the worst case scenario, completely circumscribe the production of certain kinds of expressive material, in particular pornography and racist films. He reasons that in order for the prohibition of specific types of material to exist, there must be conclusive proof that the material either: 1) is directly linked to the causation of physical harm against those parties who are negatively portrayed ( i.e. women in porn and African-Americans in KKK films) or 2) must be found to be without question profoundly offensive. Only in the presence of either of these two standards could the authoritative power of free speech be subjected to any forms of restrictions.
However, it is important to note, as even Feinberg himself acknowledges, that there are significant faults with the application of these two standards. They entail exceedingly problematic, and far too often, nearly impossible requirements which must be met in order to place limitations on the First Amendment. To prove that a film is a direct cause of violence against those groups negatively depicted in the films, there must be, as Feinberg contends, an extremely tight correlation between the film and the violent act. There can be absolutely no room for any skepticism to manifest itself. Needless to say, it is very difficult, if not impossible, to prove that such a cause exists. Consequently, the freedom of speech remains rightfully absolute in its power.
In reference to pornography, opponents, such as Mackinnon, of it articulate that porn, especially violent pornography, leads to the male dominated view of women being nothing more than mere sexual property to be acquired and abused at will. That is not to say that all men subscribe to this line of argument but, that there exists a significant number of those who do buy into this line of thinking to make for a valid claim. Taking this into consideration, there is an implied belief that this negative outlook of porn in reference to women produces a substantial increase in the frequency of violent sexual attacks against women. Henceforth, opponents hold that as the porn industry becomes more widespread, so too do the number of sexual assaults against women.
In relation to racist films, opponents debate that the distribution of these films leads to an unflattering perception of African-Americans as beings of inferiority; that they are of a lesser importance. In essence, the African-American community would strongly reason that films defaming African-Americans will eventually produce harmful effects against them.
As one member of the African-American community put it ..."The existence of racist folk films in our midst is a perpetual public laceration of our feelings. We aren't here to be publicly humiliated but, they degrade the very atmosphere in which we breathe and move" (Philosophical Problems In the Law; 216).
Though their arguments may appear seemingly rational, there is nonetheless, a serious drawback with attempting to assert the connection between violence and these kinds of films. The notion that these films are the perpetrators that cause physical violence is highly misleading. It is not enough to say that these films are directly associated with the increase of physical violence because in doing so many other possible factors are left ignored. In fact, the increased phenomenon may very well be explained in terms of another underlying ingredient. In relation to pornography, for example, Feinberg argues that the increase of sexual assaults against women is not a direct consequence of women being negatively represented in adult films. Rather, he explains that the social phenomenon could be best understood in light of the cult of "machismo," a view characterized by a male dominated society. He states that a rise in sexual assaults would not have taken place if society had not already been predisposed to the belief that women were of a lesser significance.
Moreover, he reasons that pornography is not the actual cause of physical violence. On the contrary, porn is much more a symptom of already existing social attitudes than an actual cause of it. Furthermore, prohibiting these kinds of films would do very little to solve the root problem. It would be similar to blaming a stuffy nose for having the flu. Having a stuffy nose does not cause the flu. It is the other way around. As the flu began to manifest itself in the body, a stuffy nose soon followed. Therefore, attempting to alleviate a stuffy nose would not do very much to rid your body of the flu. It might allow you to breathe much easier but, the flu would still remain in your body. Moreover, since the virus that causes the flu is the root problem, and the stuffy nose is merely a symptom, then in order to ultimately do away with it one would have to find a cure for the virus that actually causes the flu. Once that is done, then all other secondary effects will disappear.
Unlike Feinberg who held that the distribution of pornographic and racist films cannot be proscribed, Catherine Mackinnon argues that free speech could, and should, be limited under specific circumstances because it may otherwise eventually lead to the social suppression of large groups of people.
In reference to pornography, she disputes that "uncovering gender in the area of law reveals women to be the most invisible when most exposed and most silent when used in defense of speech. Women are seen only as sex and heard only when mouthing a sexual script" (Philosophical Problems In the Law; 218).
Essentially Mackinnon is attempting to express the belief that porn films, like racist films, contribute causally to discriminatory attitudes and violent behavior that ultimately lead up to the social oppression of women and African-Americans. Her discontent with the issue is centered around the notion that pornography being a male dominated industry unfairly thrusts its own biases of the position that women hold in a social context. This power, according to Mackinnon, that men have over women enables them to implement their own definition of who women can be, and what position they may acquire in society. This concept translates into a social inequality among the sexes. And with this inequality comes too the suppression of ideas of the less powerful group (women) by the more powerful group (men).
"Thus, in a society of gender inequality, the speech of the powerful impresses its views upon the world, concealing the truth of powerlessness under a despairing acquiescence that provides the appearance of consent and makes protest inaudible as well as rare" (Philosophical Problems In the Law; 222).
In this sense, the right of women to express themselves is silenced because the already widely accepted notion (mainly by men) of women as mere sexual objects defeats any attempts to correct this perception.
Although I find myself to be sympathetic towards Mackinnon's arguments, I am nonetheless, extremely hesitant to fully subscribe to her point of view. Though I too agree that adult films have a negative impact on the perceptions of women, I am however, not inclined to give up my right to freely express my ideas simply because others may find them unpopular. Mackinnon's argumentation of porn films is essentially that they produce a social oppression of women, but, she fails to realize that it is clearly insufficient to attempt to restrict such a liberty merely because others are opposed to it. Free speech will continue be a controversial issue because in such a diverse and complex society such as ours, there will inevitably always be a group of people offended by the ideas expressed by another. I am not ignorant of the fact that some forms of speech have unflattering effects upon specific groups of individuals. Racist films, for example, in which whites are depicted defaming the existence of African-Americans will surely offend the African-American community. That assumption is obviously likely, but, even racist people have a right to make their ideas known, no matter how remote their ideas may be.
Furthermore, I feel that as long as there is a market place for such ideas to exist, then the people shall retain the right to make their ideas heard. The number of individuals who adhere to a certain idea is irrelevant as grounds to circumvent its dispersion. A single person has just as much right to express him/herself as do a thousand persons. So, for example, if the proprietor of a video store wishes to sell racist material, despite maybe there being only three people who acquire the material, and the rest of the community is opposed to it, then the right of those three patrons far outweighs the discontent of the many. Thus, as in the case of American Bookseller Assn. Inc. v. Hudnut, the a court of appeals supported this articulation by holding that any ordinance that makes the injuries of pornography actionable as sex inequality is unconstitutional under the First Amendment because it prohibits the expression of a point of view.
If Mackinnon's argument was to be enforced, then where would the line be drawn in terms of what kinds of speech would be permitted and which kinds would not be. To enforce her arguments would place serious handicaps on the First Amendment. It would eventually have a chilling effect on all types of speech. In this sense, the right to free speech would become a very abstract notion, and would not hold much validity.