Dworkin Catharine A. MacKinnon, Andrea

Pornography and Civil Rights: A New Day for Women's Equality

ANDREA DWORKIN and CATHARINE A. MacKINNON

Copyright © 1988 by Catharine A. MacKinnon and Andrea Dworkin

Al rights reserved

First Printing 1988

Second Printing 1989

Copyright © 1988 by Catharine A. MacKinnon and Andrea Dworkin

Al rights reserved

Library of Congress card number: 88-190876

ISBN 0-9621849-0-X

To al the people who have worked

to pass the Ordinance into law and

to al the people who need to use it.

CONTENTS

The Meaning of Civil R ights. . ..... . ..... . ..... . . . . . . . . . . 7

The Nature of C hange........................................................17

Authority and Resistance.................................................... 19

Equality as a Social G o a l.................................................... 21

Pornography and Civil R ig h ts...........................................24

The O rdinance.....................................................................31

Statement of Policy........................................................31

Findings ........................................................................32

Definition .....................................................................36

Causes of A c tio n ...........................................................41

C oercion................................................................. 41

Trafficking..............................................................44

F o rce ........................................................................49

Assault .................................... . .............................50

Defamation..............................................................51

Defenses ........................................................................52

Enforcem ent................................................................. 54

Civil A ction..............................................................54

D am ages................................................................. 54

Injunctions..............................................................55

Technicalities................................................................. 56

Severability..............................................................56

Limitation of Action ..............................................56

Civil Rights and Speech .................................................... 58

Questions and Answers........................................................67

Table of Authorities ...........................................................97

Appendix A: The Minneapolis O rdinance.......................99

Appendix B: The Indianapolis O rdinance....................106

Appendix C: The Cambridge Ordinance ....................133

Appendix D: The Model O rdinance..............................138

Pornography and Civil Rights

5

The Meaning of Civil Rights

Civil rights as we understand them are new, not old.

Equality was not a constitutional principle or legal imperative in 1776. The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution were passed in 1865, 1868,

and 1870, not in 1776. They made slavery illegal, introduced

the principle of equal protection under the law, and gave Black

men the vote. The first civil-rights statutes were passed in the

same period to help undo the effects of slavery. Still, the after-

math of slavery was segregation. The Supreme Court decided

to outlaw segregation in public schooling in 1954, not in 1776

or 1868. Modern civil-rights acts to dismantle segregation and

prohibit discrimination were passed in 1957, 1960, 1964, and

1968, not in 1776 or 1868. The Voting Rights Act was passed

in 1965, not in 1776 or 1868. In the United States for most of

its history, Black people were virtual y excised from the body

politic, first through the constitutionally protected slave trade,

then through constitutionally protected segregation.

There were two kinds of segregation. De jure segregation

was mandated by law, enacted by statute, enforced by the police. De facto segregation was separation of the races without the overt sanction of specific laws: Blacks had inferior status,

worth, and resources.

In the South, there was de jure segregation. Laws forbade

Blacks access to public accommodations, including toilets, restaurants, hotels, parks, and stores. Blacks were allowed only restricted access to public transportation. Jobs, housing, and

education were marginal and often debased in quality. De jure

segregation effectively kept Blacks from voting. De jure segregation implicitly sanctioned physical violence against Blacks.

There was widespread police brutality and vigilante terrorism, including lynchings and castrations.

De jure segregation set the standard for the way Black people

were treated throughout the United States. The degraded civil

status and racial inferiority of Blacks were taken for granted. In

The Meaning of Civil Rights

7

practice, segregation in housing and to a somewhat lesser extent

in education was the rule. The use of the word nigger was commonplace. Unemployment and menial labor ensured that Blacks were economically dispossessed and political y disenfranchised.

Narcotics, especial y heroin, were dumped on Black urban ghettos, law enforcement collaborating in targeting a Black population for addiction and despair. White contempt for Blacks was expressed openly in humor, in street harassment, in condescension, in infantilizing or animalistic media stereotypes, and in physical violence. Until de jure segregation was dismantled,

no Black person lived independent of it no matter where they

lived, because de jure segregation meant that the authority of law

applauded the debasing of Black people. Every Black person

was affected adversely in their rights and dignity by de jure segregation, humiliated by its very existence. De jure segregation also had this deep and pernicious ef ect: it made de facto segregation

look benign by comparison. Institutionalized racism had two

ostensibly distinct, even opposite systems serving to validate it.

In the South, this racism had the authority of law. In the rest of

the country, the social inferiority of Blacks had the appearance

of being natural, not imposed by force.

De jure segregation was destroyed over many years because

vast numbers of Black people with some brave white al ies

fought it, sometimes at the cost of their lives.

De jure segregation was fought in the courts and in the streets.

“The streets” included shops, restaurants, buses, hotels, parks,

toilets, because of the high priority put by the movement on integrating public accommodations. Much of this activity was il egal. The courts and the streets were not separate arenas.

When the Supreme Court disavowed segregation in public

education in 1954, it was left to Black children to desegregate

the schools. They faced white mobs led by armed police and

elected white of icials. The children, not the Supreme Court,

integrated the schools. When Rosa Parks refused to give up

her seat to a white man on a bus in Montgomery, Alabama, on

December 1, 1955, she was arrested and convicted for breaking a state segregation law. The Black community organized a boycot of the Montgomery buses that eventually led to their

8

Pornography and Civil Rights

desegregation. Endless acts of civil disobedience resulted in

perhaps hundreds of thousands of arrests over a period of at

least a decade; marches led to continuous confrontations with

violent police; civil-rights activists used the courts, sometimes

as litigants, sometimes charged as criminals.

The courts were the courts of segregation; north or south,

federal or state, they had protected segregation. The streets were

the streets of segregation. The police were the police of segregation. The vote was the vote that had kept segregation inviolate. Civil-rights activists confronted the institutions of segregation because they wanted to destroy segregation. They went to where the power and injury were and they confronted the power

that was causing the injury. This power hurt them whether or

not they fought it. In fighting it, however, they forced it to reveal itself—its cruelty and its sadism but also its premises, its dynamics, its structural strengths and weaknesses. Each confrontation led to another confrontation, more and worse social conflict, often more and worse police or mob violence. The courts

led to the streets and the streets led to the courts. The good judicial decisions led to the armed police who did not accept those decisions, which led back to jail and back to the courts. There

were also in time negotiations with two Presidents of the United

States (Kennedy and Johnson) and the Justice Department; then

back to the street, back to jail, back to court. There were battles

and compromises with federal legislators; then demonstrations,

marches, civil disobedience, jail. In the impoverished rural areas

of the Deep South, civil-rights workers taught illiterate Blacks

to read and write so they could pass the literacy tests that were

being used to keep Blacks out of the voting booths. The civil-

rights workers were met with white violence. So were the Blacks

who tried to register to vote, throughout the South.

The social conflict was real. Many were hurt and some were

killed. The conflict escalated with each confrontation, inside

the courts or in the streets. Each confrontation became more

costly, both to the civil-rights activists and to the white-su-

premacist society they were fighting. Each confrontation

forced people throughout the society to ask at least these two

fundamental questions of power and dignity: Who is getting hurt

The Meaning of Civil Rights

9

and why? By attacking de jure segregation on every front, however dangerous or difficult, the civil-rights activists made

the cost of maintaining the racial status quo higher and higher.

Eventually it became too high. The Civil Rights Act of 1964

opened up public accommodations, first in the South, later

everywhere, to Black people. The Voting Rights Act of 1965

opened up the voting booths.

The high cost of maintaining the status quo forced change;

and so did the increasing moral authority of the protesters.

They risked everything. Their bravery indisputably expressed the eloquence of their humanity to a nation that had denied the very existence of that humanity. Each assertion of

rights enhanced the persuasive power of those who demanded equality. The moral authority of the protesters eventually exceeded the moral authority of the state that sought to crush

them. They won access to public accommodations and to the

voting booth; and they won the respect of a nation that had

hated them. De jure segregation no longer set the standard for

the contemptuous disregard of the rights of Black people; instead, Black people set the human standard for courage.

Principles:

1. Confront power by challenging it where it is strongest,

meanest, and most entrenched. (For instance, white supremacy was strongest in the legally segregated South; meanest in the streets, including in public accommodations; and most entrenched in the courts. ) 2. Intensifying and escalating social conflict leads to social

change.

3. The status quo must become too costly for the dominant

society to bear.

4. The moral authority of those confronting entrenched

power can be a force for change.

10

Pornography and Civil Rights

Our contemporary understanding of civil rights—what they

are, what they mean—comes out of the Black experience: ’the

human rights of Black people—their rights of citizenship and

personhood—were violated in de jure and de facto systems of

segregation. Civil-rights legislation grew out of the specific

configurations of Black exclusion from society, dignity, and

rights. Other groups were also af orded legal protection from

discrimination. Where the pat erns of discrimination experienced by those groups were analogous to pat erns of Black exclusion under segregation, civil-rights laws remedied longstanding, systematic deprivations. For instance, the disabled, now protected under civil-rights legislation, have a right of

equal access to public schooling and public accommodations.

The effort to stop racial discrimination in jobs, hiring practices,

and housing has provided many stigmatized groups legal redress.

Generally, discrimination on the basis of race, sex, religion, color,

national origin, marital status, disability, or, in some cities and

states, sexual or affectional preference, is banned. This broadening of civil-rights protection to many stigmatized groups was the result of political activism, legislative initiatives, and many, many

lawsuits. It was not simply decreed one bright day because it was

right and bigots had recognized the error of their bad ways.

It is especially important to understand that Blacks includes

Black women and that women includes Black women. When

Black people as a whole or women as a whole are discriminated against or hurt, Black women are denied rights. (For instance, when Blacks were given the vote, but women were

excluded, Black women could not vote. )

Women have benefited greatly from civil-rights legislation

and litigation when discrimination has taken the form of exclusion because of sex, especially in employment. When the pat erns of sex discrimination resemble those of race discrimination, especially as they developed under segregation, civil-rights law offers remedies. But when injuries on the basis of

sex are distinct and different—as, for instance, in systematic

sexual abuse—there are no effective civil-rights remedies in

law even though basic rights of citizenship and personhood

are being denied or violated.

The Meaning of Civil Rights

1

The legal history of women’s rights in the United States is

appalling.

Put in the simplest terms: women were the chattel property

of men under law until the early part of the twentieth century.

Married women could not own property because they were

property. A woman’s body, her children, and the clothes on

her back belonged to her husband. When the husband died,

another male, not the mother, became the legal guardian of

the children. The body of a married woman belonged to her

husband just as a slave’s body belonged to the white master.

A single woman was under the legally formidable authority of

her father or other male relatives. Mar ied women were what

nineteenth-century feminists called “civil y dead. ” Single

women sometimes paid taxes. No women had rights of citizenship. Women did not have a constitutionally protected right to vote until 1920.

The Fourteenth Amendment to the U. S. Constitution was

ratified in 1868. The Fourteenth Amendment is unique in the

Constitution. It is an equality-based amendment; it says that

equality under the law is a right. The Fourteenth and the Fifteenth Amendments gave Black men the vote. The Fourteenth Amendment guaranteed citizens equal protection under the

law. The Fourteenth Amendment intentionally excluded

women. * Only in 1971 did the Supreme Court hold that

women too were entitled to the equal protection under the

law promised by the Fourteenth Amendment.

The banning of discrimination on the basis of sex in the

Civil Rights Act of 1964 was a partial and mean af air. Trying

to defeat the whole Civil Rights Act, racist Southern Congressmen proposed to add sex on a par with race to Title VII, the

* Section 2 of the Fourteenth Amendment indudes the fol owing: “But when the

right to vote at any election for the choice of electors... is denied to any of the male inhabitants of such State, being twenty-one years of age... or in any way abridged

... the basis of representation therein shall be reduced in proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. ” (Emphasis added. ) In other words; when states deny any man the right to vote in federal or state elections, the Fourteenth Amendment is violated. The Fourteenth Amendment, by express language, declined to extend this equality right, the right to vote, to any women. The Nineteenth Amendment, which extended the franchise to women, was passed in 1920.

12

Pornography and Civil Rights

part of the bill designed to prohibit race discrimination in hiring practices. (Women were not included in the public-accommodations protections in 1964 or 1968. ) This segregationist

amendment adding sex was passed only because the Civil

Rights Act could not be passed without it.

The segregationist amendment was a serious effort to defeat

the bill. It outraged liberal Congressmen who wanted the

1964 Civil Rights Act to pass. It was intended to be—and was

taken as—a massive and foul insult to Black people and to

those in Congress who favored integration. It was widely regarded as a moral obscenity that demeaned the whole concept of civil rights.

The insult of the amendment was: saying Blacks could be

equal with whites was like saying women could be equal with

men, a transparent absurdity. The insult was: the inequality

between Blacks and whites and especially the incapacities of

Blacks were as natural, as normal, as biologically inevitable,

as divinely ordained, as the inequality between the sexes and

especially the incapacities of women. The insult was: Blacks,

like women, are by nature servile and infantile; trying to elevate Blacks to some other level would be like trying to elevate women (and, by inference, children)—ludicrous, deranged.

On the gut er level, the segregationists had, in effect, gone

from calling those who opposed segregation “niggers” and

“nigger lovers” to calling them all “pussy. ”

The conviction that women could have or should have any

relief from civil inequality played no part in establishing this

first legislative basis for sex discrimination as a violation of

civil rights; and the conviction that women had a right to substantive and honest equality similarly played no role.

Most major advances in sex equality under civil-rights

law—from af irmative action to redress for sexual harassment—have come from litigation, not legislation, though Congress subsequently af irmed a commitment to sex-discrimination law many times, especially in the 1970’s.

Some of the legal rights that feminists regard as fundamental to women’s civil equality have nothing at all to do with civil-rights law or sex discrimination. For instance, the right to

The Meaning of Civil Rights

13

abortion is considered a right of privacy under law, not an

equality right. A man’s right to have and use pornography in

his home is protected under the same right of privacy, and the

pornographers have been active in (1) keeping the two rights

legally linked and (2) persuading feminist groups not to

pursue the right to abortion as an issue of sex equality in law.

Also, it is no surprise that civil-rights law has not killed racism. It wounded its most protected social expressions but, with segregationists having enormous power in Congress and

nearly two centuries of racism saturating the society, no one

asked Blacks to make social policy that would cor ect socially

pervasive debasement. Instead, there was a negotiation with

America’s segregationists, world-class racists by any measure.

It is not just that there are limits to what law can do; there

were serious limits to what this society would even consider

doing. There stil are.

FACTS:

1. Women were chattel property until the early part of the

twentieth century.

2. The Fourteenth Amendment, which guaranteed equal

protection under the law and, with the Fifteenth Amendment, gave Black men the right to vote, intentionally excluded women.

3. Women did not have a constitutionally protected right to

vote until 1920. In 1971, the Supreme Court said women

had a right to equal protection under the law.

4. “Sex” was amended to the Civil Rights Act of 1964 in the

section concerning hiring practices by segregationists to

try to defeat the whole bill.

5. The right to choose abortion is a right of privacy under

law, not a right of equality.

6. When discrimination against women takes place in the

same ways as discrimination against Blacks, there are civil-

14

Pornography and Civil Rights

rights remedies. When the pat erns of discrimination are

different, having different origins and different dynamics, there are no such remedies, no mat er how egregious the discrimination is or how violating the pat erns of sex-based inequality are.

In the job market, women have been forcibly excluded and

forcibly segregated. The low status of women has been partly

created and partly maintained through the exclusion and the

segregation. Civil-rights law is used to fight the exclusion and

the segregation in themselves and to fight the continuing bad

effects of past segregation.

In the common fabric of everyday life, women are, in a

sense, forcibly integrated, intimately. integrated, with society

organized so that women’s sexual and reproductive capacities

have been control ed by men. Women have been kept out of

the marketplace to be kept in the home, or kept in the bed,

or kept in the kitchen, or kept pregnant. Social institutions,

pat erns, and practices force women to fulfill the sexual and

reproductive imperatives of men.

Because so much of women’s social inequality centers on

forced sexual and reproductive compliance, the ways in which

women are debased in rights and in personhood center on issues of bodily integrity, physical self-determination, and the social eradication of forced sex or sexual abuse. Systematic violations of women’s rights to safety, dignity, and civil equality take the form of rape, battery, incest, prostitution, sexualized

torture, and sexualized murder, all of which are endemic in

this society now. These are acts of sex-based hate directed

against a population presumed to be inferior in human worth.

These are means of keeping women subjugated as a group

with a low civil status and a degraded quality of life.

The second-class status of women is justified in the conviction that by nature women are sexually submissive, provoke and enjoy sexual aggression from men, and get sexual

pleasure from pain. By nature women are servile and the servility itself is sexual. We are below men in a civil and sexual The Meaning of Civil Rights

15

hierarchy that mimics the sex act. It is our sexual nature to

want to be used, exploited, or forced. Sex equality is seen to

violate the very natures of men and women, presuming a

sameness where none exists; and violations of women are seen

to be part of normal human nature, not the result of a coercive social system that devalues women.

Women need laws that address the ways in which women

are kept second-class: the institutional sanctions for violence

and violation, de jure and de facto; the pat erns of exploitation and debasement; the systematic injuries to integrity, freedom,

equality, and self-esteem.

Principles:

1. Remedies for inequality must be derived from the specific

kinds and pat erns of inequality that exist. They must

address the real ways in which people are hurt.

2. Civil inferiority is social y coerced, not natural.

3. To dismantle the coercion, you have to figure out how

society organizes and maintains it.

4. Those who are civil y inferior are presumed to have a nature that deserves the treatment they get.

5. Women’s human rights are violated through sexual exploitation and abuse. Rape, battery, incest, prostitution, sexualized torture, and sexualized murder express contempt for the human worth of women and keep women second-class.

6. Sex-based violation can both express an at itude and be a

material means of keeping women down.

16

Pornography and Civil Rights

The Nature of Change

People seem to resist change and to defend the status quo

whatever it is. Sometimes the defenses are bigoted and violent.

Sometimes they are sophisticated and intellectual. If the status

quo is endangered, both kinds of defenses are called into play.

Inequality is made to seem normal and natural, whatever

social form it takes.

When some people have power and some people do not,

creating equality means taking power from those who have

too much and giving power to those who have too little. Social change requires the redistribution of power.

Those who have power over others tend to cal their power

“rights. ” When those they dominate want equality, those in

power say that important rights wil be violated if society changes.

In the segregated South, two kinds of “rights” were defended

by white-supremacists. First, they defended states’ rights. They

said that the framers of the Constitution had given states the

sovereign right to legislate social policy, including the separation of the races, and that the power of the federal government to intervene had been strictly and severely limited by the framers.

What they said was true. In fact, the framers had constructed

the Constitution so that the states had the power to protect

slavery' Segregation could hardly have mat ered a hill of beans

to them. Second, those in power. said that integration would take

from them a precious civil liberty protected by the First Amendment: the right to freedom of association. Forced to integrate schools, parks, hotels, restaurants, toilets, and other public accommodations, whites lost the power to exclude Blacks. This they experienced as having lost the “right” to associate with

whom they wanted, that is to say, exclusively with each other.

Wrongful power is often protected by law because law is the

ordering of power. Law organizes power. In a society where

women and Blacks have been legal chattel, the law is not premised on a sensitivity to their human worth. Law protects

“rights”—but mostly it protects the “rights” of those who have

The Nature of Change

17

power. The United States is a particularly self-congratulatory

nation. We say that we invented democracy and that our Constitution represents the highest principles of civilized governing. Yet our Constitution was designed to protect slavery and to keep women chattel. The “rights” guaranteed to white men

were grants of freedom that established a civil and social dominance over Blacks and women. Change has not occurred because white men developed a passion for equality. (Had they, that passion would not have been constitutional. ) Change has

not occurred because those with power felt that they had too

much and wanted to give some up. Change has come from sustained, often bit er rebellion against power disguised as

“rights. ” Highfalutin legal principles have masked and protected privilege, dominance, and exploitation.

Change is not easy, fast, or inevitable. The powerless are responsible for creating change. They have to, because those who have power wil not. Why should they? This is not fair, but it is

true. Power takes dominance for granted; dominance is like

gravity, not felt as a force at al , simply accepted as the way things

are, each thing being in its proper place. Dominance is dignified—sincerely, not cynical y—as a “right” or a series of “rights. ”

If someone has power over you and you take that power away

from him, he wil say you are taking away his rights. Society wil

have given him a legitimate way—often a legal way—to claim that

dominance is a right of his and that submission is a duty of yours.

Principles:

1. Equality requires the redistribution of power.

2. Those who are social y dominant experience dominance as

a right.

3. Take away wrongful power and you wil be accused of

taking away rights. Often, this wil be true because the law,

under the guise of protecting rights, protects power.

18

Pornography and Civil Rights

Authority and Resistance

Even though the framers gave the states the right (power)

to protect slavery, and even though forced integration did diminish the scope, breadth, substance, and importance of the First Amendment right to freedom of association (for whites,

of course), a time came when these tenets of constitutional law

had to be reinterpreted. The authority of law could be maintained only if law sanctioned the equality that had been anathema to it.

The courts never said they had been wrong; and to this day

it is a dicey business to impugn the more perfect Constitution

of the framers. But law had to bend or break. The authority

of the law always appears to be absolute but in fact it is never

absolute or immutable. Resistance can force it to change its

ground.

The authority of the law had been used to impose inequality.

This inequality gave whites authority. The resistance to

inequality had to confront, resist, and repudiate both the

authority of the law and the authority of whites. To maintain

itself, law changed. The authority of whites was pret y much

destroyed. It had to be, because white authority carried the

contagion of white supremacy beyond where law could go.

Male authority over women permeates every social institution and most intimate exchanges and practices. The state is one agent of male authority. The rapist is another. The

husband is another. The pimp is another. The priest is

another. The publisher is another. And so on. Resistance to

male authority requires far more than resistance to the state

or to the authority of the state. For women, the authority of

the man extends into intimacy and privacy, inside the body in

sex and in reproduction. In worshiping a male God, in conforming to social codes of dress and demeanor, even in using language, women defer to the authority of men.

The means of resistance to this ubiquitous and invasive

authority have never been adequate. Sometimes they hardly

Authority and Resistance

19

seem serious. Even when women resist inequality and the

authority of the state that imposes inequality, women continue

to capitulate to the authority of men, an authority premised

on women’s inequality. In a fight for freedom, such a capitulation is suicidal. Accepting male authority means accepting important elements of one’s own social and sexual inferiority.

Deference to male authority means deference to second-class

status.

The authority of the law must be—and can be—forced to

change its ground: to sanction equality. The authority of men

has to be pret y much destroyed. It is probably impossible to

repudiate women’s inequality while accepting male authority.

So far, hostility to the authority of men appears to be a serious no-no, even though each act or at itude of deference further entrenches male dominance. It is likely that women’s

inequality—the habits and pat erns of discrimination, prejudice, and debasement that injure women—can survive any political resistance so long as the authority of men remains, as

it is now, both sacrosanct and intact.

Principles:

1. The authority of law, which has sanctioned inequality, can

be forced to sanction equality if resistance is intense enough

and if the stakes are high enough, for example, the viability of the law itself.

2. The authority of those who dominate must also be resisted

and destroyed.

3. Deference to male authority means deference to second-

class status.

4. Resisting the authority of men is necessary.

20

Pornography and Civil Rights

Equality as a Social Goal

Freedom of Association

Whites have freedom of association because whites have

power. Whites use it to exclude Blacks. Blacks do not have freedom of association because they are forbidden from going many places under many circumstances. Whites say that if they

are forced to integrate, they wil be deprived of their right to

freedom of association. They are in fact deprived of it so that

this same right can be extended to Blacks. The mathematics of

the situation are clear: as long as whites count as the humans

who have a right to rights, making them integrate means

taking away their absolute control of association in public and

in private. As soon as Blacks count as humans who also have

rights, freedom of association is in fact extended, increased,

significantly multiplied, because Blacks can exercise it by going

to the places whites had been able to forbid them to go.

Freedom of Speech

Women, who have lived in social, political, and legal silence,

are told that freedom of speech is a sacrosanct right, and that

any ef ort to diminish it for anyone diminishes it for women.

Though women have been excluded from access to the means

of communication, from the political dialogue, from education, from economic equity or political power; though women are forced into social silence by contempt and by terrorism;

though women are excluded from participation in the institutions that articulate social policy; women are supposed to value speech rights by valuing the rights of those who have

excluded them. In particular, if a pornographer takes a

woman and hangs her bound and gagged and photographs

her and publishes the photograph, she, that particular woman,

is supposed to value his right to speech over her own; and if

she should suggest that he must not be allowed to profit from

her physically coerced silence, she wil be told that her right

Equality as a Social Goal

21

to freedom of speech depends on protecting his. If she says,

But he gagged me and hung me and I couldn’t talk so I did

not have a right of speech that I could exercise, she wil* be

told to solve her problem in some way that wil not impinge

on or diminish his right to express himself through his use of

her body. If she recognizes that his so-called right is an exercise of power at the expense of her humanity, and if she wants rights of speech that are real in the world such that he cannot

gag her and hang her and photograph her and publish her,

she wil be accused of wanting to take his rights from him. In

fact, she wants to take his power over her from him. He has

power disguised as rights protected by law that fosters

inequality. The mathematics are simple: his diminished power

wil lead to an increase in her rights. The power of the pornographer is the power of men. The exploitation of the woman gagged, hung, photographed, and published is the

sexualized inferiority and human worthlessness of women. If

men cannot gag, hang, photograph, and publish women, men

wil have les power and women wil have more rights.

Because the establishment of equality means taking power

from those who have it, power protected by law, those who

have wrongful power hate equality and resist it. They defend

the status quo through bigotry and violence or sophistication

and intellect. They find high and mighty principles and say

how important rights are. They say that rights wil be lost if

society changes. They mean that power wil be lost, by them.

This is true.

The Constitution, including the Bil of Rights (the first ten

amendments to the Constitution), has served to defend

wrongful power and to protect inequality and exploitation.

This is primarily because Blacks and women were not recognized as fully human and their inequality was built into the basic structure of constitutional law. We need to establish a

legal imperative toward equality. Without equality as a fundamental value, “rights” is a euphemism for “power, ” and legally protected dominance wil continue to preclude any real equality.

22

Pornography and Civil Rights

Principles:

1. Equality means that someone loses power; it is taken from

him. He does not like this and fights it. He cal s his power

“rights” and so does the law.

2. The mathematics are simple: taking power from exploiters

extends and multiplies the rights of those they have been

exploiting.

3. The U. S. Constitution, including the Bil of Rights, has

protected wrongful power disguised as rights. Strong

equality law can change this. We need to put the highest

social value on equality.

Pornography and Civil Rights

Law has traditionally considered pornography to be a question of private virtue and public morality, not personal injury and collective abuse. The law on pornography has been the

law of morals regulation, not the law of public safety, personal

security, or civil equality. When pornography is debated, in

or out of court, the issue has been whether government should

be in the business of making sure only nice things are said and

seen about sex, not whether government should remedy the

exploitation of the powerless for the profit and enjoyment of

the powerful. Whether pornography is detrimental to “the social fabric” has therefore been considered; whether particular individuals or definable groups are hurt by it has not been, not really.

Since, in this traditional view, pornography can only violate

an idea of the society one wants to think one lives in, the question of pornography has not required looking into who can violate whom and get away with it. Once pornography is

framed as concept rather than practice, more thought than

act, more in the head than in the world, its effects also necessarily appear both insubstantial and unsubstantiated, more abstract than real. So both what pornography is and what it

does have been seen to lie in the eye of the beholder, to be a

mat er of what one is thinking about when one looks at it, to

be a question of point of view. And since the accepted solution

for dif ering moral views has been mutual tolerance, one

man’s harm has been seen as another’s social value as the pornography industry in the United States has doubled in the last ten years without effective interference from the courts.

The law has been wrong. Obscured beneath the legal fog of

obscenity law and the shield of the law of privacy and the perversely cruel joke of the law against prostitution has been the real buying and selling of real individuals through coercion or

entrapment, or through exploiting their powerlessness, social

worthlessness and lack of choices and credibility, their despair

24

Pornography and Civil Rights

and sometimes their hope. Shielded from public view, in-part

through the collaboration of law, has been the manufacture

from skin and blood and ruined lives of a vicious product by vicious people. Veiled as well has been the shameless profiteering in run-down parts of town, the pressure deals with unscrupulous

politicians and judges, the arm-twisting of retailers, the

takeovers of magazine distribution networks and underground

control of legitimate entertainment businesses, the threats and

sabotage of the personal, occupational, and public lives of anyone who gets in their way, and the outright buying of liberal credibility, which parades a traffic in human beings—this auction block on every newsstand in the country—as a principled means of sexual and expressive freedom, and stigmatizes doing

or saying anything about it as censorship.

Equally clouded by specious media reports and outright lies

has been the direct evidence of a causal relationship between

the consumption of pornography and increases in social levels

of violence, hostility, and discrimination. * So, few knew of

those trapped in sexually toxic marriages or jobs to keep a roof

over their heads and to feed their children. Few—except the

many who did it or had it done to them—knew that the abuses

of pornography’s production are a mere prelude to the abuse

mass-produced through pornography’s mass distribution and

mass consumption: the rapes, the battery, the sexual harassment, the sexual abuse of children, the forced sex, the forced

* This evidence is consistent across social studies (studies on real people or real data in the real world), laboratory studies (controlled exposure and response situations in isolated settings), and testimony by both professionals (for example, therapists who work with victims and offenders, police who observe evidence of sex crimes) and direct victims (women in al walks of life, such as prostitutes, daughters, wives, students, employees). The evidence is summarized in Diana E. H. Russell, “Pornography and Rape: A Causal Model, ” Political Psychology Vol. 9 No. I (March 1988): 41-73.

Most of the major social and laboratory studies are discussed in N. Malamuth and E.

Donnerstein, eds., Pornography and Sexual Aggres ion (1984) and D. Zillman, Connections Between Sex and Aggres ion (1984). Al the relevant studies, together with analysis of victim testimony, are listed in the Attorney General’s Commission on Pornography, Final Report (July 1986), 299-349; 1885-1906. Women and men testified to their experience of the causal relation between pornography and harm to them in the hearings held by the Minneapolis City Council on the Ordinance, Public Hearings on Ordinances to Add Pornography as Discrimination Against Women, Committee on Government Operations, City Council, Minneapolis, Minn. (Dec. 12—13, 1983).

Pornography and Civil Rights

25

prostitution, the unwanted sexualization, the second-class status. And the increasing inability to tell the difference between al of that and sex—al of that and just what a woman is.

Those who do this are silent in order to protect their power,

profits, and pleasure. Many who have this done to them are

silent because they are ashamed, afraid, bought, or dead. But

overwhelmingly they are silent because even when they speak

no one listens. This makes them ashamed and afraid—and

even, for al we know, bought or dead. For the rest, those who

have known have not cared, and those who might have cared

have not known—or were kept from knowing, or were not

permit ed to care, or thought they could not afford to know

or care. Completely absent from most legal and political debate on the subject have been the twelve individual men whose names virtually never surface. These are the heads of large

organized-crime families who own, control, and profit from

the pornography industry, buying with terror whatever legitimacy and impunity they cannot buy with money, thriving while others pay the human cost. The entire debate over pornography is primarily for their benefit.

The legal conception of what pornography is has authoritatively shaped the social conception of what pornography does. Instead of recognizing the personal injuries and systemic harms of pornography, the law has told the society that pornography is a passive reflection or one-level-removed

“representation” or symptomatic by-product or artifact of the

real world. It thus becomes an idea analog to, a word or picture replay of, something else, which somehow makes what it presents, that something else, not real either. So its harms have

not been seen as real. They have, in fact, been protected under

the disguise of the name given that world of words and pictures which are not considered real: “speech. ” This could happen because law is an instrument of social power first, and those who produce and consume pornography have social

power. Pornography is made unreal to protect it, in order to

protect the pleasure, sexual and financial, of those who derive

its benefits. Those who are hurt by pornography—society’s

powerless, its disregarded, its rejects, the invisible and voice-

26

Pornography and Civil Rights

less, mostly women and children—are made unreal in order

to keep their abuse defined the way those who enjoy it define

it: as sex. Particularly with women, whose social definition as

inferior is a sexual one, victimization through pornography

has been perceived as a natural state, not as victimization at

al but as fit ing and chosen. When they are thought to be paid

for their exploitation, that both confirms that this is what they

have to sel and, by making it a market transaction, makes it

appear not to be exploitation at al .

Law is often thought to be a neutral instrument. But law has

participated directly in making pornography a legal and social institution. Obscenity law misdefines the problem of pornography as offensive and. immoral public displays of sex, evades the real harms, and is unworkable in design, while always making it seem that the problem could be solved with greater exercise of prosecutorial wil . It is the seductiveness

of obscenity law to seem potential y effective because its terms

are so meaningless they could mean almost anything. As a result, they have meant almost nothing, being (actually) dependent upon the viewpoint of the observer. This makes obscenity law less useful the more pornography is a problem, because

the more pornography is consumed, the more observers’

views are shaped by it, and the more the world it makes confirms that view. Privacy law has further institutionalized pornography by shielding the sexual sphere, where so much of pornography’s violence to women is done, including by outright guaranteeing the right to possess pornography in the home, the most violent place for women. Pornography has

also been legally institutionalized through decrying but permit ing pimping and prostitution (of which pornography is one form), making sure prostitutes are the ones who pay for

doing what the entire social system has given them, as women,

little choice but to do in one form or another.

The law has helped make pornography a social institution

more indirectly as wel . The law of rape makes the pornographic assumption that women may consent to forced sex.

The law of child custody applies the pornographic definition

of the female to mothers. Women who have sexual relations

Pornography and Civil Rights

27

with a man or men not the father of their children have long

been considered loose women, hence not good mothers.

Lesbian mothers have found that a woman who is not being

sexually used by a man is considered an inadequate woman,

hence also not a good mother. The frequent failures of attempts under sex-discrimination law to get women the same pay as men when they do dif erent work of comparable value

permits job definitions and pay scales to continue based on

pornographic definitions of women’s proper role as men’s

hierarchical subordinates, as sexually pleasing to men visual y, and as servicers of male needs. It also keeps women so poor they need to sel sex to men to survive. The law of evidence pervasively permits a woman’s credibility to be based upon the pornographic standard that what a woman is sexual y and does sexually is the relevant measure of her word and her worth. If she has had sex, she is worthless as a human

being and can neither be violated nor believed. If she has not

had sex, she is worthless as a woman, hence is not worthy of

belief. Pervasively, whether by the collaboration of ineffective

or perverse action, or by the complicity of inaction, the legal

system has supported the existence and burgeoning of this industry and its social propriety as wel . Deep legal echos on al levels of the system support the existence of pornography in

the world and make it seem right that the legal system condones it. What the law does, the law must undo.

Law in the United States provides a forum for airing disputes recognized as legitimate and an avenue for redressing grievances and harms considered worth redressing for people

considered worth intervention. For individuals who are hurt

by other individuals, civil court promises dignity to conflict,

recognition to an arguable harm, some ground rules beyond

overt force, an opportunity to fight for one’s life, a chance for

vindication, and the possibility of relief... maybe even a little

change. Those whose harms the society takes seriously are

permit ed access to court; they are full citizens. Those whose

harms the law refuses even to allow into court are not; they

are victims, period. In this country, civil-rights law particularly has been an oppositional force for change. It has given 28

Pornography and Civil Rights

people, dignity, self-respect, and hope, without which people

cannot live. Ever since Black people demanded legal change

as one means to social change, civil rights has stood for the

principle that systematic social inequality—the legal and social institutionalization of group-based power and powerlessness—should and would be undone by law. Law would do this both because it had a shameful part in creating and maintaining social inequality and because it could do something about it. The fact that law had obscured or permit ed inequality, had

reflected and furthered it both, was seen not as a reason that

law should be disregarded but as a reason it had to be used.

This was not done out of political naivete or civics-class faith

in the legal system’s intrinsic justice. It was done out of determination to make this society’s normal everyday mechanisms work for normal everyday people—all of them. Civil rights is

a “Look, we live here, too” movement. It is not dedicated primarily to making the society more comfortable for outlaws or to lessening the stigma of marginality or to making powerlessness feel bet er. It is dedicated to changing basic norms so that what was outlaw and marginal and powerless no longer is. It

aims to alter the mainstream. For civil-rights movements,

then, the fact that law is an instrument of the powerful has

never been an inert fact to be met with complacency or

despair, far less a reason to leave its power in the hands of the

powerful. It has been a reason that the law cannot af ord to

be ignored. The law’s pretense at providing equal justice did

not provide an occasion for cynicism, but a hypocrisy to be

exposed and a promise to be delivered, not a radical reason

to do nothing. The law of sex discrimination, aimed at altering the inequality of women to men, at eliminating the subordination of women to men as a norm, has been a part of this tradition, at least to some of us.

The civil-rights approach to pornography is an application

of this tradition, this analysis, and this determination to the

emergency of pornography and the condition of women. Accordingly, the antipornography civil-rights law (“the Ordinance”) does not admonish or moralize or apologize or request. By making it possible for women who can prove harm Pornography and Civil Rights

29

to sue pornographers, it draws a line by making action

possible. In so doing, it defines a standard that tells the pornographers and their consumers that women are human beings, meaning that when they are hurt, something can be

done about it. Unlike any prior approach to pornography,

this law is based on proof of a harm, not a judgment about the

permissibility of an idea. And, like al civil-rights legislation,

it addresses a harm that derives its meaning and sting from

group status.

30

Pornography and Civil Rights

The Ordinance

Statement of Policy

The statement of policy that begins the Minneapolis Ordinance capsulizes its legal approach: Pornography is sex discrimination. It exists in Minneapolis posing a substantial threat to the health, safety, peace, welfare, and equality of citizens in the community. Existing state and federal laws are inadequate to solve these problems in Minneapolis.

Pornography is recognized as a practice of civil inequality

on the basis of gender, posing the threats to its target population that al socially institutionalized inequalities do. This clause also recognizes the obvious fact that, while many of the

acts that make up the distinctive harms of pornography are

formally illegal, no existing laws are effective against them. If

they were, pornography would not flourish as it does, and its

victims would not be victimized through it as they are. Lawyers

seeking to protect pornography often become extremely ingenious in inventing legal theories that they insist already cover all serious harms of pornography—legal theories they

seldom intend to try to make work, by the way.

In fact, no laws now permit those victimized by pornography

to sue the pornographers for the pornography. So long as the

pornography can be made and sold, the harms of its making

and use wil continue, and the incentive to make it and sel it

wil continue. Obscenity laws have proven essentially unworkable against the industry—even with al the power at the disposal of federal, state, and local law enforcement, even in the hands of expert and committed lawyers. Zoning laws move some

of the harms of pornography from one district to another, but

do nothing to address them. Criminal laws exist against rape,

battery, assault, kidnapping, sexual molestation of children, and

many other acts that are standard practice in the pornography

The Ordinance

31

industry. The problem is, police and prosecutors and judges

and juries view the women in the materials the way the pornography does: because of what they are doing, they are not hurt by it. Consider also that the women in pornography are prostitutes, hence unlikely to find the criminal-justice system hospitable to their claims. Privacy laws also exist against commercial exploitation of image in some states. I n theory, these would seem

to protect some coerced models; in practice, they have proven

virtually useless. Some states provide special laws restricting the

use of a person’s image after they are dead—smal consolation

to the victim, one imagines. Attempts are being made through

sexual-harassment law to address pornography in the workplace; results are extremely mixed. Nothing addresses pornography forced on victims at home.

It is not unusual for civil-rights violations to include many

acts that the dominant group has previously recognized as injurious, just not in a way that is workable for the subordinate group. For instance, the acts comprising lynching and much

sexual harassment were formally illegal before they were recognized as abuses of civil rights, but until they were so recognized, nothing was done about them. Moreover, if laws currently addressed pornography through its harms to victims, such laws would be precedent for the Ordinance, not necessarily a reason it should not exist. This is only to say that the Ordinance cannot be both unconstitutional and legally redundant. But, in the real world, women who are abused through pornography have essentially made the same realistic assessment of their chances in the legal system that the legislatures who pass the Ordinance make: no laws now on the books are

likely to work because they have not worked. Defending the

legal status quo at a point like this is nothing but complacency

and complicity with human suffering.

Findings

When legislatures pass a law, they often tell courts what they

have learned and decided and why they are concerned about

the subject. Hearings, constituent letters, and documents usu32

Pornography and Civil Rights

ally substantiate these conclusions of fact and statements of intent, called “findings. ” Findings provide the factual basis for a law; they show the need and grounds for it. They also communicate to the courts that wil apply it what the legislature saw and wanted, and the spirit in which the law is to be interpreted. Courts, as a result, often look at findings to see what the legislature was trying to accomplish, taking findings as

authoritative evidence of legislative intent. Here are findings

similar to those passed by the Minneapolis and Indianapolis

city councils: *

Pornography is a systematic practice of exploitation

and subordination based on sex that differentially

harms women. The harm of pornography includes dehumanization, sexual exploitation, forced sex, forced prostitution, physical injury, and social and sexual terrorism and inferiority presented as entertainment. The bigotry and contempt pornography promotes, with

the acts of aggression it fosters, diminish opportunities

for equality of rights in employment, education, property, public accommodations, and public services; create public and private harassment, persecution, and

denigration; expose individuals who appear in pornography against their wil to contempt, ridicule, hatred, humiliation, and embar assment and target

such women in particular for abuse and physical aggression; demean the reputations and diminish the occupational opportunities of individuals and groups on the basis of sex; promote injury and degradation such

as rape, battery, child sexual abuse, and prostitution

and inhibit just enforcement of laws against these acts;

contribute significantly to restricting women in particular from full exercise of citizenship and participation in public life, including in neighborhoods; damage relations between the sexes; and undermine women’s

* For the exact text of both Ordinances, see Appendix A (Minneapolis) and Appendix B (Indianapolis). Note that the findings here that support a claim for defamation through pornography had not yet been included in either Ordinance.

The Ordinance

33

equal exercise of rights to speech and action guaranteed to al citizens under the Constitutions and laws of the United States and [place].

In Minneapolis, where the Ordinance was first introduced in

late 1983, the City Council held public hearings to inquire into

the ef ects of pornography and to provide the basis for a civil-

rights law against it. Based on these hearings, and expanded

and reconfirmed through the efforts of people in many communities, the Ordinance’s findings outline a range of harms from the individual and intimate to the social and anonymous.

In the hearings, women and men spoke in public for the first

time in the history of the world about the devastating impact

pornography has had on their lives. They spoke of being

coerced into sex so that pornography could be made of it. They

spoke of pornography being forced on them in ways that gave

them no choice about seeing the pornography or later performing the sex. They spoke of rapes pat erned on specific pornography that was read to them during the rape, repeated like a mantra throughout the rape; they spoke of being turned over

as the pages were turned over. They spoke of the sexual harassment of living or working in neighborhoods or job sites saturated with pornography. A young man spoke of growing up gay, learning from heterosexual pornography that to be loved

by a man meant to accept his violence, and as a result accepting

the destructive brutality of his first male lover. Another young

man spoke of his struggle to reject the thrill of sexual dominance he learned from pornography and to find a way of loving a woman that was not part of it. A young woman spoke of her

father using pornography on her mother, and using it to keep

her quiet about her mother’s screams at night, threatening to

enact the scenes on the daughter as wel if she told anyone.

Another young woman spoke of the escalating use of pornography in her marriage, unraveling her self-respect, her belief in her future, the possibility of intimacy, and her physical integrity—and of finding the strength to leave. Another young woman spoke of being gang-raped by hunters who looked up

from their pornography at her and said it al : “There’s a live

34

Pornography and Civil Rights

one. ” Many spoke of self-revulsion, of the erosion of intimacy,

of unbearable indignity, of shat ered self, of shame, and also of

anger and anguish and outrage and despair at living in a

country in which their torture is enjoyed and their screams are

only heard as the “speech” of their abusers.

Therapists spoke of bat ered women tied in front of video

sets and forced to watch, then participate in, acts of sexual

brutality. Former prostitutes spoke of being made to watch

pornography and then duplicate the acts exactly, often starting as children. Psychologists who worked with survivors of incest spoke of sexual tortures with dogs and electric shocks

involving the consumption of pornography. One study documented more rapes in which pornography was specifically implicated than the total number of rapes that were reported at the time in the city in which the study was done. Correlations

showed increases in the rate of reported rape with increases

in the consumption figures of major men’s entertainment

magazines. Laboratory studies showed that pornography portraying sexual aggression as pleasurable for the victim (as so much pornography does) increases the acceptance of the use

of coercion in sexual relations; that acceptance of coercive sexuality appears related to sexual aggression; that exposure to violent pornography increases men’s punishing behavior

toward women in the laboratory. It increases men’s perceptions that women want rape and are uninjured by rape. It increases their view that women are worthless, trivial, nonhuman, objectlike, and unequal to men.

No one claimed that these things never happen without

pornography. They said that sometimes it was because of pornography that these things happened. No one claimed that these are the only things that happen because of pornography.

They said only that no mat er what else happens, this does.

The Ordinance was writ en, as the pornography and its

defenses have been, in the blood and the tears of these women

and men, in the language of their violated childhoods and

stolen possibilities. The Ordinance, unlike the pornography

and its defenses, was writ en in the speech of what has been

their silence.

The Ordinance

35

Definition

The way a legal definition works is that someone who wants

to use the law must prove that each part of it applies to their

case. For example, anyone who wants to use the antipornography civil-rights law would have to prove first that whatever materials they want to attack are pornography, by proving that they fit this definition.

Pornography is the graphic sexually explicit subordination of women through pictures and/or words that also includes one or more of the following: (i) women

are presented dehumanized as sexual objects, things,

or commodities; or (i ) women are presented as sexual

objects who enjoy pain or humiliation; or (i i) women

are presented as sexual objects who experience sexual

pleasure in being raped; or (iv) women are presented

as sexual objects tied up or cut up or mutilated or

bruised or physically hurt; or (v) women are presented

in postures or positions of sexual submission, servility, or display; or (vi) women’s body parts—including but not limited to vaginas, breasts, or but ocks—are

exhibited such that women are reduced to those parts;

or (vi ) women are presented as whores by nature; or

(vi i) women are presented being penetrated by objects or animals; or (ix) women are presented in scenarios of degradation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that

makes these conditions sexual.

The use of men, children, or transsexuals in the

place of women in [the paragraph] above is also pornography.

Pornography is an industry. It exists in the world. No pornographer has any trouble knowing what to make. No distributor has any trouble knowing what to carry. No retailer has any trouble knowing what to order. No consumer has any

trouble knowing what to buy. But before the Ordinance, the

indefinability of pornography had become the key to its defi36

Pornography and Civil Rights

nition. Men had decided that the bot om line of pornography

was that it was sexual y arousing. Therefore, they were unwilling to have other men define it, or even to admit it could be defined, because that would be a step toward giving up what

they like, which they were unwilling to do. Once the pornographic is synonymous with the sexually arousing, anything that is sexually arousing might be pornographic. But so many

things produce that definite stirring between the legs, including the violence against women and violation of women and objectification of women in R-rated movies or Vogue magazine

or Calvin Klein commercials or Yeats’ “Leda and the Swan. ”

So a definition of pornography with a core of meaning—far

less one with limits that do not depend on whether the viewer

is turned on or not—was pronounced intrinsically impossible.

The Ordinance adopts a simple if novel strategy for definition. It looks at the existing universe of the pornography industry and simply describes what is there, including what must be there for it to work in the way that it, and only it,

works. It is true that pornography exists on a larger social

continuum with other materials that objectify and demean

women and set the stage for and reflect women’s social devaluation. It is true that many materials (such as some religious works and sociobiology texts) express the same message as

pornography and are vehicles for the same values. This does

not mean either that pornography cannot be defined or that

it does not operate in a distinctive way.

Pornography is not what pornography says. If it were, the

Ordinance’s definition of pornography would be itself pornography, because it says exactly what pornography is. In other words, the Ordinance does not restrict pornography on

the basis of its message. The same message of sexualized

misogyny pervades the culture—indeed, it does so more and

more because pornography exists. But that does not make

“Dallas” and “Dynasty” into pornography, however close they

come. Indicators of the difference are that no one is coerced

into performing for Calvin Klein commercials; no one is tied

up in front of “The Secret Storm” and forced to enact its

scenes later; no rapist or john we have heard of has read

The Ordinance

37

Masters and Johnson or Ulys es aloud to his victim and demanded she perform its contents. Nor are these materials peddled on New York City’s 42nd Street by organized crime.

These indicators are no substitute for a definition. But they

do show that, in the world, a lot of people know the difference

between pornography on the one hand and art, literature,

mainstream media, advertisements, and sex education on the

other. This remains the case even though al these materials

are definitely part of a world that one might call pornographic in the political sense: a world in which women are visual objects for sexual use. Such materials are not pornography—

and, frankly, everyone knows they are not. The definitional

task is merely to capture in words something that is commonly

known and acted upon but not already totally defined in the

world. This is hardly a unique problem in legal definitions.

Basical y, for pornography to work sexually with its major

market, which is heterosexual men, it must excite the penis.

From the evidence of the material itself, its common denominator is the use or abuse of a woman in an expressly sexual way. To accomplish its end, it must show sex and subordinate

a woman at the same time. Other people are sometimes used

in similar ways, sometimes in exactly the ways women are, but

always exploiting their gender. This is the reason that the definition covers everyone regardless of sex, yet covers each person as a member of their sex: that is the way the pornographers use them.

Under the Ordinance, pornography is what pornography

does. What it does is subordinate women, usual y, through sexual y explicit pictures and words. Of al pictures and words, only sexually explicit pictures and words enter into sexual experience to become part of sexual reality on the deep and formative level where rapes are subliminally fantasized, planned, and executed; where violence is made into a form of sex; where

women are reduced to subhuman dimension to the point where

they cannot be perceived as ful y human. But not al sexually

explicit pictures and words do this in the same way. For this reason, the Ordinance restricts its definition only to those sexually explicit pictures and words that actually can be proven to sub38

Pornography and Civil Rights

ordinate women in their making or use. Too, many materials

show women being subordinated, sometimes violently, including much mainstream media and feminist critique of violence against women. Some of this is sexually explicit, some is not.

Not even al sexually explicit material that shows women being

subordinated is itself a vehicle for the subordination of women;

some of it, like the transcript of the Minneapolis hearings on

pornography, expressly counters that subordination.

Subordination is an active practice of placing someone in an

unequal position or in a position of loss of power. To be a subordinate is the opposite of being an equal. Prisoner/guard, teacher/student, boss/worker define subordinate relations.

The simple notion on which the Ordinance is based, on account of which it has taken much criticism, is that man/woman not be such a relation, even though many people apparently

cannot imagine sex any other way. Subordination is at the core

of every systematic social inequality. It includes the practices

that enforce second-class status. Subordination includes objectification, hierarchy, forced submission, and violence. Anyone who brought a case under the Ordinance would have to prove that the challenged materials actually subordinated

women in their making or use in order to show that the materials were pornography. In other words, the fact that a legislature finds that pornography subordinates women enough to pass a law does not mean that al materials that someone might

think are pornography are automatically illegal. It only gives

women a chance to try to prove in court that specific materials are pornography because they actively subordinate women (and meet the other requirements), therefore fit the definition.

The definition is closed, concrete, and descriptive, not open-

ended, conceptual, or moral. It takes the risk that al damaging materials might not be covered in order to try to avoid misuse of the law as much as possible. Some of the enumerated

subparts specify presentations of women that show express violence; some focus on acts of submission, degradation, humiliation, and objectification that have been more difficult to see as violation because these acts are most distinctively done to

women and called sex. Most of the public debate on the

The Ordinance

39

enumerated subparts revolves around defenses of materials

that individuals enjoy and feel they can get away with defending in public. Few are willing to defend violent pornography in public, even though the nonviolent materials are also known

to be harmful, if in different ways—for instance, in their use

by rapists and child molesters, in increasing the acceptability

of forced sex, and in diminishing men’s vision of the desirability and possibility of sex equality. Ignoring these similarities, some would limit the definition of pornography to violent materials, saying pornography is violence but not sex. This is unrealistic because pornography practices violence as sex. It would be unrealistic to limit a definition of pornography to

conventional coital sex, since the pornographers do not, and

just as impractical to exonerate everything in pornography

that someone feels to be sex. Everything in pornography is sex

to someone, or it would not be there.

The Ordinance makes the society have to choose whether

some woman—usually poor and without options and formerly

abused if not overtly coerced or tricked into being there—

must be used or abused in these ways and bought and sold by

pimps so that some segment of the buying audience can have

its sex life the way it wants it. This is essentially what is at stake

in debates over which specific presentations of women should

be included on the list. What is not at stake is which sexual

acts one enjoys or practices or prefers or morally approves.

Whatever one’s moral judgments, the presentations in the

definition are there because there is material evidence that

they do harm, and the decision has been made that the harm

they do to some people is not worth the sexual pleasure they

give to other people—not because the people making the laws

do not like these acts sexually or disapprove of them morally.

The Indianapolis definition is restricted to sexual violence.

If violence occurs in the making or use of the material, the

material itself need not show violence. But violence must be

shown in the material itself for a traf icking claim to be made.

The Indianapolis definition allows a victim of coercion or assault to sue if the materials—in addition to being graphic, sexually explicit, and subordinating to women—present

40

Pornography and Civil Rights

women “as sexual objects for domination, conquest, violation,

exploitation, possession, or use, or through postures or positions of submission, servility, or display. ” Often, individuals are coerced through violence into sexually explicit and subordinating performances, but the coercion itself is not shown in the film. Often the gun at the head is off stage. When it

comes to the traf icking provision, however, this subpart of

the definition provides the so-called “Playboy defense, ” meaning that the Indianapolis legislature wished to exempt from traf icking actions materials that, in its view, did not actually

show violence. So, in this version of the Ordinance, materials

that show women as sexual objects for domination, conquest,

violation, exploitation, possession, or use, or through postures or positions of servility, submission, or display could be reached only by those who are coerced into them or assaulted

because of them, but not by women generally.

Causes of Action

People hurt other people in many ways that are not against

the law. To have a “cause of action” means that there is a law

against what happened, so one can sue. The victims do not

have to first fight about whether they are permit ed to sue or

not, the way women now, without the Ordinance, have to fight

when they want to stop being hurt by pornography. With a

cause of action, one only has to prove that what the law

provides for has happened to you. The Ordinance provides

five such possibilities for suit: for coercion into pornography,

for having pornography forced on you, for being assaulted because of particular pornography, for defamation through pornography, and for traf icking in pornography.

Coercion

Coercion into pornography: It shall be sex discrimination

to coerce, intimidate, or fraudulently induce (hereafter, “coerce”) any person, including transsexual, into performing for pornography, which injury may

date from any appearance or sale of any product(s) of

The Ordinance

41

such performance(s). The maker(s), seller(s), exhibitor^), and/or distributor(s) of said pornography may be sued for damages and for an injunction, including

to eliminate the product(s) of the performance(s) from

the public view.

None of the following facts shall, without more, negate a finding of coercion: (i) the person is a woman; or (i ) the person is or has been a prostitute; or (i i) the

person has attained the age of majority; or (iv) the person is connected by blood or marriage to anyone involved in or related to the making of the pornography; or (v) the person has previously had, or been thought to have had, sexual relations with anyone, including anyone involved in or related to the making of the pornography; or (vi) the person has previously

posed for sexually explicit pictures with or for anyone, including anyone involved in or related to the pornography at issue; or (vi ) anyone else, including

a spouse or other relative, has given or purported to

give permission on the person’s behalf; or (vi i) the

person actually consented to a use of a performance

that is later changed into pornography; or (ix) the person knew that the purpose of the acts or events in question was to make pornography; or (x) the person showed no resistance or appeared to cooperate actively in the photographic sessions or in the events that produced the pornography; or (xi) the person signed

a contract, or made statements af irming a willingness

to cooperate in the production of pornography; or

(xi ) no physical force, threats, or weapons were used

in the making of the pornography; or (xi i) the person was paid or otherwise compensated.

The first victims of pornography are those in it. Pornography indelibly makes those it uses into its presentation of them, so that no mat er who they are or what they say about

how they really felt, to those who have seen them in pornography, they are pornography for life. Pornography is not like 42

Pornography and Civil Rights

other forms of acting or modeling. The viewers have a sexual

stake in believing that the women in pornography are not

models or actors but truly feel and want what the script cal s

for. That they are having a wonderful time seems essential to

the sexual pleasure of the largest segment of the audience, although for many it is pleasurable to believe that the woman is being forced. Either way, the consumer believes that the

woman in the material belongs there, that she is fulfilled in her

nature by the acts performed on her. This is the bedrock to

the scepticism that women are coerced into pornography.

Pornographers promote an image of free consent because it

is good for business. But most women in pornography are

poor, were sexually abused as children, and have reached the

end of this society’s options for them, options that were biased

against them as women in the first place. This alone does not

make them coerced for purposes of the Ordinance; but the fact

that some women may “choose” pornography from a stacked

deck of life pursuits (if you call a loaded choice a choice, like

the “choice” of those with brown skin to pick cabbages or the

“choice” of those with black skin to clean toilets) and the fact

that some women in pornography say they made a free choice

do not mean that women who are coerced into pornography

are not coerced. Pimps roam bus stations to entrap young girls

who left incestuous homes thinking nothing could be worse.

Pornographers advertise for lingerie or art or acting models

they then bind, assault, and photograph, demanding a smile

as the price for sparing their life. Men roam the highways with

penises and cameras in hand, raping women with both at once.

Husbands force their wives to pose as part of coerced sex, often

enforced by threats to the lives of their children. Women are

abducted by pimps from shopping centers and streets at random, sometimes never to return. Young women are tricked or pressured into posing for boyfriends and told that the pictures

are just “for us, ” only to find themselves in this month’s Hustler.

Girls are enticed into posing for the photographer next

door, confused at their feelings of uncomfortableness, shame,

and af irmation. He makes them feel beautiful, with his approval, admiration, solicitude, presents, molestation. Fathers The Ordinance

43

sel pictures of sex acts with their own children to international

pornography rings. Aspiring actresses and models are fraudulently induced into posing for nude or seminude shots, told the genitals wil not show or it wil be a silhouette or they wil

not be recognized—until they see themselves fully exposed

and fully identified in Penthouse. Or they are told it wil be

their ticket to the top, only to find that most legitimate avenues

are then closed to them because they appeared nude, so it is

their ticket to the bottom. Until women are socially equal to

men, it wil be impossible to know whether any women are in

pornography freely. And until women can bring an effective

action for coercion into pornography, and get the product of

their abuse off the market, it wil be impossible even to begin

to know how many of them are coerced.

Law has an elaborate tradition of reasons for believing that

women lie about sexual force, reasons that duplicate pornography’s view of women. The Ordinance’s list of conditions that do not alone mean a woman is not coerced is a summary of

these reasons. One or several of these facts—for example, that

the woman signed a contract—may, with other circumstances,

lead a trier of fact (a judge or a jury) to believe that she was

not coerced. But the simple fact that a contract was signed may

not mean that the woman was not coerced. If a woman can be

coerced into having sex with a dog, she can be coerced into

signing a contract. The point of this provision in the Ordinance

is to prevent the mere fact of, say, a contract existing from being

used to preclude inquiry into the coercion that may have produced it. This list is also intended to sensitize courts to the kinds of facts routinely used to undermine women’s credibility.

Trafficking

Trafficking in pornography: It shall be sex discrimination to produce, sel , exhibit, or distribute pornography, including through private clubs.

(i) City, state, and federally funded public libraries

or private and public university and college libraries

in which pornography is available for study, including

44

Pornography and Civil Rights

on open shelves but excluding special display presen-,

tations, shall not be construed to be traf icking in pornography.

(i ) Isolated passages or isolated parts shall not be

actionable under this section.

(i i) Any woman may file a complaint hereunder as

a woman acting against the subordination of women.

Any man, child, or transsexual who alleges injury

by pornography in the way women are injured by it

may also file a complaint.

The traf icking provision makes it possible for any woman

to bring a complaint against pornographers for subordinating

women. It is not necessary for an individual woman to show

that she has been harmed more than all other women have by

pornography. It is definitely necessary for her to prove that

the materials meet the definition of pornography, for which it

is necessary to prove that they do the harm of subordinating

women. A traf icking complaint would provide the opportunity for women to at empt to prove to the satisfaction of a trier of fact that there is a direct connection between the pornography and harm to women as a class. Such harm could include being targeted for rape, sexual harassment, battery, sexual

abuse as children, and forced prostitution. It would include

the harm of being seen and treated as a sexual thing rather

than as a human being—the harm of second-class citizenship

on the basis of gender. Sources of proof would be the same as

those used as the factual basis for passing the Ordinance: the

testimony of direct victims and other authorities and the materials themselves. The argument would be that pornography demonstrably makes women’s lives dangerous and second

class, that pornography sets the standard for the way any

woman can be treated, that so long as it is protected women

wil not be. So long as it can be done, it wil continue to be

done—to a woman. Which woman is only a mat er of roulet e.

Women in pornography are bound, bat ered, tortured,

harassed, raped, and sometimes killed. Or, in the glossy men’s

entertainment magazines, they are “merely” humiliated,

The Ordinance

45

molested, objectified, and used. In al pornography, they are

prostituted. This is done because it means sexual pleasure to

pornography’s consumers and profits to its providers. But to

the women and children who are exploited through its making

or use, it means being bound, bat ered, tortured, harassed,

raped, and sometimes killed, or merely humiliated, molested,

objectified, and used, because someone who has more power

than they do, someone who matters, someone with rights, a full

human being and a ful citizen, gets pleasure from seeing it, or

doing it, or seeing it as a form of doing it. In a case under the

Ordinance, it could be shown at trial that in the hundreds and

hundreds of magazines and pictures and films and videocassettes and so-called books now available in outlets from adult stores to corner groceries, women’s legs are splayed in postures

of sexual submission, display, and access. We are named after

men’s insults to parts of our bodies and mated with animals.

We are hung like meat. Children are presented as adult

women; adult women are presented as children, fusing the

vulnerability of a child with the sluttish eagerness to be fucked

said to be natural to the female of every age. Racial hatred is

sexualized by making every racial stereotype into a sexual

fetish. Asian women are presented so passive they cannot be

said to be alive, bound so they are not recognizably human,

hanging from trees and light fixtures and clothes hooks in

closets. Black women are presented as animalistic bitches,

bruised and bleeding, struggling against their bonds. Jewish

women orgasm in re-enactments of death-camp tortures. In

so-called lesbian pornography, women do what men imagine

women do when men are not around, so men can watch. Pregnant women and nursing mothers, amputees and other disabled or il women and retarded girls are used for sexual excitement. In some pornography called “snuff, ” women or

children are tortured to death, murdered, to make a sex film.

Through its production, pornography is a traffic in female

sexual slavery. Through its consumption, pornography

further institutionalizes a subhuman, victimized, second-class

status for women by conditioning orgasm to sex inequality.

When men use pornography, they experience in their bodies

46

Pornography and Civil Rights

that one-sided sex—sex between a person and a thing —is sex,

that sexual use is sex, sexual abuse is sex, sexual domination

is sex. This is the sexuality they then demand, practice, and

purchase. Pornography makes sexism sexy. It is a major way

that gender hierarchy is enjoyed and practiced. Pornography

is a sacred, secret codebook that has both obscured and determined women’s lives. There laid bare is misogyny’s cold heart: sexual violation enjoyed, power and powerlessness as

sex. Pornography links sexual use and abuse with gender

inequality by equating them: the inequality between women

and men is both what is sexy about pornography and what is

sex discriminatory about it.

In the hearings in Minneapolis, the harm of pornography

was extensively documented in proceedings one observer, a

member of the city’s Civil Rights Commission, likened to the

Nuremburg trials. Researchers and clinicians documented

what women know from life: pornography increases at itudes

and behaviors of aggression and other discrimination by men

against women. Women testified that pornography was used

to break their self-esteem, to train them to sexual submission,

to season them to forced sex, to intimidate them out of job opportunities, to blackmail them into prostitution and keep them there, to terrorize and humiliate them into sexual compliance,

and to silence their dissent. They told how it takes coercion to

make pornography, how pornography is forced on women and

children in ways that give them no choice about viewing the

pornography or performing the sex. They told how pornography stimulates and condones rape, battery, sexual harassment, sexual abuse of children, and forced prostitution. We learned from the testimony that the more pornography men

see, the more abusive and violent they want it to be; the more

abusive and violent it becomes, the more they enjoy it, the more

abusive and violent they become, and the less harm they see in

it. In other words, pornography’s consumers become unable

to see its harm because they are enjoying it sexually. Men often

think that they use pornography but do not do these things.

But the evidence makes clear that pornography makes it impossible for them to tell when sex is forced, that women are The Ordinance

47

human, and that rape is rape. Evidence of a direct cor elation

between the rate of reported rape and consumption figures of

major men's entertainment magazines supports this. Pornography makes men hostile and aggressive toward women, and it makes women silent. Anyone who does not believe this should

speak out against pornography in public some time.

Pornography also engenders sex discrimination. By

making a public spectacle and a public celebration of the

worthlessness of women, by valuing women as sluts, by defining women according to our availability for sexual use, pornography makes al women’s social worthlessness into a public standard. Do you think such a being is likely to become Chairman of the Board? Vice President of the United States?

Would you hire a “cunt” to represent you? Perform surgery

on you? Run your university? Edit your broadcast? Would

you promote one above a man? Pornography’s consumers

make decisions every day over women’s employment and educational opportunities. They decide how women wil be hired, advanced, what we are worth being paid, what our

grades are, whether to give us credit, whether to publish our

work. They also decide whether or not to sexually harass us,

and whether other pornography consumers have sexually

harassed us when we say they have. They raise and teach our

children and man our police forces and speak from our pulpits and write our news and our songs and our laws, telling us what women are and what girls can be. Pornography is their

Dr. Spock, their Bible, their Constitution. It is so basic it is a

habit, their standard for what they “know” without knowing

they know it. It simply makes up how they see the world, a

world in which women, in order to be treated as equals, must

try to convince them that we are exceptions among women,

that is, that we, although female, are just as human as they

are. In creating pervasive and invisible bigotry, in addition to

constituting sex discrimination in itself, pornography is utterly inconsistent with any real progress toward sex equality for women.

Although the social position of men, children, and transsexuals is not absolutely defined by pornography in the way 48

Pornography and Civil Rights

women’s is, they are often used in pornography in ways similar to the ways women are used. The Ordinance makes it possible for them to sue. The Ordinance also permits civil suits

against the use of children in pornography. Specific subgroups

of men, particularly gay men and Black men, would also have

strong potential cases. For both, their civil status is made lower

by their sexualization in pornography and in society. For both,

one can see a direct relation between their use in pornography

and their low social status. Gay men are often used literally in

the same ways women are in pornography; their status being

lowered to that of a woman is part of the sex. Abuse of gay men

is also eroticized in pornography, promoting self-hatred of an

oppressed group as its pleasure and identity. Black men in heterosexual pornography are presented through the same sexual stereotypes that have pervaded the racist use of the rape

charge and that have arguably increased the likelihood that

Blacks wil receive the death penalty when they commit a crime

against a white. Pornography sexualizes racism against them.

Black men are reduced to the racist view of their sex: the out-

sized rapist penis, the color of the colonized and the chain

gang. They are animalized, huge and promiscuous and amoral

and out of control. Black men are also shown in chains, in sexualized slavery. The connection between violence against such men in pornography and violence against them in the world

has not yet been fully documented, but would be possible to

at empt under the Ordinance.

Force

Forcing pornography on a person: It shall be sex discrimination to force pornography on a person, including child or transsexual, in any place of employment, education, home, or public place. Only the perpetrator of the force or institution responsible for the force may

be sued.

Pornography conditions the working environment of

countless of ices, construction sites, shipyards, hospitals, and

homes. It pervades hierarchical arrangements. Doctors use it

The Ordinance

49

on patients in therapy or in gynecologists* of ices; men use it

on wives and children in homes; teachers use it on students in

schools; males use it on females in factories, nursing homes,

day-care centers, everywhere. Sometimes the pornography is

“just there, ” but escape is impossible short of being deprived

of a job or a class. As is sometimes recognized in cases of sexual

harassment, being deprived of a setting you have a right to be

in can be a form of force in itself. Other times pornography

is overtly forced on victims by physical or psychological terrorism. The Ordinance is designed to make possible suits against those who force pornography on others, but not

against the pornographers themselves.

Assault

Assault or physical at ack due to pornography: It shall be

sex discrimination to assault, physically attack, or injure any person, including child or transsexual, in a way that is directly caused by specific pornography.

Complaint(s) may be made against the perpetrator of

the assault or attack and/or against the maker(s), distributor^), seller(s), and/or exhibitor(s) of the specific pornography.

The debate over the relationship between pornography and

violence against women has been haunted by a specter of absurdity: the man who rapes with a pornographic book in his back pocket. As it turns out, these specters are real. The assault

section of the Ordinance does not resolve the debate on the relationship between pornography and rape. It does make it possible for an individual woman to sue a man who rapes her

with a pornographic book in his back pocket—and its maker,

distributor, and seller too. It gives her a chance to try to prove

that there is a direct causal relationship between an act of violence against her and a specific piece of pornography.

Sometimes men rape or maim women sexually while telling

them that they know they like it because they saw women like

them in pornography who liked it. Sometimes they bring the

pornography and force the women to open their legs, position

50

Pornography and Civil Rights

their arms, adjust their facial expressions, and say the exact

words from the pornography. Sometimes they use specific pornography to decide what “type” of woman to rape, to get themselves ready for rape, to reduce their inhibitions to rape.

Sometimes young boys murder themselves accidentally by

strangulation because they are engaging in sexual play promoted in pornography. Under this provision, no one could sue pornographers for the general contribution pornography

makes to a rape culture, a culture that equates sex with death.

Specific pornographers could, however, be sued in an at empt

to prove the causal contribution of specific pornography to the

specific physical injury. Claims under this section would be

very difficult to prove, but anyone who could prove causality

by this standard should be able to keep the same pornography

from causing other injuries, as well as receive damages.

Defamation*

Defamation through pornography: It shall be sex discrimination to defame any person through the unauthorized use in pornography of their proper name, image, or recognizable personal likeness. For purposes

of this section, public figures shall be treated as private

persons. Authorization once given can be revoked in

writing at any time prior to any publication.

Some pornography simply turns individual women into

pornography against their wil , sexualizes them. A favorite

tactic of the pornographers is to reduce specific women who

are in the public eye to “cunt. ” Whatever else a woman may

have accomplished, whoever else she may be, particularly if

she is successful, self-respecting, and/or feminist, she can be

sold to any man for his personal sexual access and use for the

price of a monthly magazine. This practice is particularly common in the case of prominent movie stars, many of whom had to do nude modeling for some part of their life, and promi

* This provision was not proposed or included in either the Minneapolis or the Indianapolis Ordinance.

The Ordinance

51

nent feminists, especially those who oppose pornography,

whose heads are cut and spliced onto other women’s bodies

and genitals, or who are viciously caricatured in pornographic cartoons.

Al pornography defames women as a class by devaluing

them in the eyes of those who consume the material. It links

women’s reputation and women’s sexuality by degrading

both, and thus limits the possibilities for individual women.

But some pornography goes further against specific individuals by undermining their individual reputations and destroying their standing in the community and their work possibilities. Defamation through pornography is a form of public rape that multiplies humiliation as it broadcasts it, takes away

a woman’s integrity, violates her personal boundaries, shat ers

her own self-respect in the mirror of the world around her,

making an image of her that she walks into irrevocably whenever she walks down the street, suffocating her in her own bed at night. It undermines her authority. By lowering the floor

for acceptable treatment of her, it makes possible virtually anything to be said about her and targets her for physical abuse as wel . Those who are singled out for this exemplary form of

public hanging are selected because they are women who are

visibly self-possessed, effective, articulate, successful, feminist,

or beautiful in a way the pornographers must defile, use, own,

steal, sel .

Defenses

It shall not be a defense that the defendant in an action

under this law did not know or intend that the materials were pornography or sex discrimination, except that in an action for damages for trafficking and in an

action for damages against a publisher, sel er, exhibitor, or distributor for assault, it shall be a defense that the defendant did not know or have reason to know

that the materials were pornography.

Either pornography does harm or it does not. If it does, it

does not stop doing so because the pornographers do not know

52

Pornography and Civil Rights

that it is pornography or that it does harm. But pornographers

know exactly what they are doing and to whom; they just do

not care. The problem is, the more they know what they are

doing, the more difficult, it becomes to prove that they know,

because they are far bet er at covering up what they do than

are those who act unconsciously or inadvertently. As a result,

requiring victims to prove that perpetrators like pornographers know or intend their acts against them is an invitation to cover-ups that would make the Ordinance a dead letter.

The main practical purposes of the Ordinance are to stop

the harm of pornography from continuing and to compensate direct victims in a way that both helps them and provides some deterrent to future abuse. In light of these purposes,

this provision recognizes the difference between major pornography distributors and the legitimate booksellers who sell an occasional item of pornography. Women and children are

not being bought and sold in this country so that legitimate

booksellers can sell the occasional copy of the Marquis de

Sade’s 120 Days of Sodom. But women and children are being

raped because they are doing this. Therefore, they can be sued

for selling materials that cause assault. If they were sued for

damages for traf icking, they could argue that they did not

know or intend what they sold to be pornography. They might

win and they might not.

A big producer or distributor of pornography would have

a difficult time credibly denying that he knew or had reason

to know that he was in the pornography business. Often it is

so advertised. Plaintiffs could at empt to prove compensatory

damages against such big traf ickers for all the sexual assault,

forced prostitution, street harassment, and civil denigration

they arguably cause. Punitive damages (money paid to victims

to punish perpetrators) could be requested as well. But it

might wel be more difficult to show that a legitimate booksel er being sued for traf icking, or for assault due to specific pornography, knew or had reason to know he was selling pornography. This provision thus protects legitimate booksel ers from damages for truly inadvertent violations while retaining

the ability to stop all of them.

The Ordinance

53

Enforcement

Civil Action

Any person aggrieved by violations of this law may enforce its provisions by means of a civil action filed in a court of competent jurisdiction. No criminal penalties

shall attach for any violation of this law.

The evidence that supports the Ordinance might wel justify criminal penalties under existing legal standards, and some may be appropriate. In order to empower women,

however, the Ordinance as cur ently designed operates civil y.

This means that no police seize materials and impound them

while legal proceedings drag on. No prosecutors decide

whether or not a woman’s case is valid. While it might be

advantageous at some point to engage the help of the state apparatus against the pornographers, it is clear that the entire structure of state, federal, and local government, with al the

resources and power at its disposal, has not managed to do

anything significant about the pornography industry.

It is time to place the power to remedy the harm in the hands

of those who are hurt, rather than to enhance the power of those

who have done so little with so much for so long. Currently,

there are laws against rape, domestic battery, and sexual abuse

of children, and prosecutors and police do virtually nothing effective about these problems. Too, pornographers are in the pornography business largely to make money. After a rare conviction for obscenity, many continue to run their businesses from jail. They cannot, on our analysis, continue their business

without hurting women and children. Therefore, empowering

those that the pornographers must hurt to do business by

making it possible for their victims to target a reason the pornographers do that business seems like the most obvious, best, perhaps only chance of ultimately eliminating them.

Damages

Any person who has a cause of action, or their estate,

may seek nominal, compensatory and/or punitive

54

Pornography and Civil Rights

damages without limitation, including for loss, pain;

suf ering, reduced enjoyment of life, and special damages, as well as for reasonable costs, including at orneys’ fees and costs-of investigation.

In claims for traf icking or against traf ickers under

the assault provision, no damages or compensation for

losses shall be recoverable against maker(s) for pornography made, against distributor(s) for pornography distributed, against seller(s) for pornography sold, or against exhibitor(s) for pornography exhibited, prior to the effective date of this law.

The purpose of money damages in lawsuits is to compensate

the victim for the injury. While it is impossible truly to compensate anyone for the harm of pornography, it is also impossible truly to compensate for the injury of libel, wrongful death, dismemberment, medical malpractice, and most other personal injuries that are compensated al the time. The particular point of damages under this civil-rights law is twofold: to recognize

that something that belonged to the victim was wrongly taken

from her, and to provide restitution in the same terms that provided the pornographers with an incentive to take it in the first place. Pornographers are in the pornography business to make

money. As a mat er of policy, any scheme to stop them must recognize that a major motivation to abuse is financial.

Injunctions

Any person who violates this law may be enjoined, except that (a) no temporary or permanent injunction shall issue prior to a final judicial determination that

the challenged activities constitute a violation of this

law, and (b) no temporary or permanent injunction

shall extend beyond such materials that, having been

described with reasonable specificity by the injunction,

have been determined to be validly proscribed under

this law.

The civil-rights injunction is a recognized tool for relieving

The Ordinance

55

civil-rights abuses in schools, housing, employment, prisons,

mental-health facilities, and coundess other settings. Yet, applied to pornography, this provision is often mischaracterized as a “ban. ” It works the same way al civil-rights injunctions

work: once a practice is shown to injure its victims, a court can

issue an order to stop it. In a case of coercion, the court could

stop the coerced materials from being sold. In a case of force,

the court could stop the forcing of pornography from continuing. In a case of assault, the court could stop the material proven to have caused the assault from being distributed or sold further. In a case of trafficking, the court could stop materials

proven to subordinate on the basis of sex from being made, circulated, sold, or shown. None of these steps could be taken until al the appeals in the case were through, and it could be taken

only against materials that have been specifical y described.

Technicalities

Severability

Should any part(s) of this law be found legally invalid,

the remaining part(s) remain valid, if consistent with

the overall intent of this law.

Most laws have a provision that invites courts to uphold

some parts of the law even if it finds other parts of it invalid.

The Indianapolis Ordinance was particularly careful to permit a reviewing court to uphold the law against actual presentations of a woman being subordinated, even if other parts of the law were invalidated.

Limitation of Action

Complaints under this law must be filed within six

years of the discriminatory acts alleged.

Abuse through pornography often occurs over a long period of time, ending only when the victim can find the resources or means or self-respect to escape. The impact of the abusive process, coupled with the fact that the society protects

56

Pornography and Civil Rights

and defends the abuser and ignores and stigmatizes. the

abused, undermines the victim’s sense of personal ef icacy,

trust, belief in political action, and faith in the legal process.

By the time individuals recover sufficiently to act, the time period within which they must complain before the injury expires has long elapsed. Discrimination laws customarily allow a disgracefully and uniquely short several-month period within which to complain. The six-year period provided by the Ordinance is more like the usual period allowed for personal

injuries the law takes seriously. The time period would start

to run from the last date the injury was done, except when it

was argued that there was a good reason to start it later—for

example, because the victim was a child when the abuse ended,

or because an adult victim remained under duress or threat

although the forced pornographic performances had ended.

Civil Rights and Speech

The Ordinance takes power from some of the most powerful people in society—those who can buy and sel other human beings for intimate gratification—and gives it to some of the

most powerless people in society—those who, as a class, have

previously been intimately violated with impunity. Given the

way the law has framed the pornography question to benefit

the powerful, one could expect that the first judicial response

to this redistribution would be negative. It was. In 1985, in a

lawsuit brought by a media group (some pornographers, most

not) against the City of Indianapolis for passing the Ordinance, the U. S. Court of Appeals for the Seventh Circuit found that the Ordinance violated the First Amendment guarantee of freedom of speech. The decision conceded that pornography does the harm we say it does, and the legislature said it did: contributing materially to rape and other sexual

violence, constituting a form of subordination in itself, and

being partly responsible for second-class citizenship in many

forms, including economic ones. But the decision held the

pornography was more important—indeed, that one could

tell how important the pornography was by the harm that it

did.Miscasting the Ordinance into obscenity’s old drama of

ideas, the decision assumed that the Ordinance restricted

ideas even though the Indianapolis Ordinance was confined

to four practices: coercion into pornography, forcing pornography on a person, assault due to specific pornography, and traf icking in materials that subordinate women. So far as the

Ordinance is concerned, al the ideas pornography expresses

can be expressed—so long as coercion, force, assault, or trafficking in subordination is not involved. These are acts, not viewpoints or ideas. Coercion is not a fantasy. Force is not a

symbol. Assault is not a representation. Trafficking in subordination is an activity two times over—once as traf icking and once as subordination—not just a mental event.

58

Pornography and Civil Rights

Under United States law, speech interests are regularly found

les important than other interests when courts decide that pictures and words are false, obscene, indecent, racist, coercive, threatening, intrusive, or even inconvenient or inaesthetic.

Using a child to make sex pictures, or distributing or receiving

such pictures—whether or not the child is forced, whether or

not one knows that the child is a child, and whatever the sex

pictures show—is a crime for which one can be put in jail. Yet

the Seventh Circuit decision on the Ordinance tells women that

because pornography expresses a viewpoint about women, it

does not mat er if it is also coerced, assaultive, or discriminatory. Because a picture of a coerced woman might be artistic or scientific or educational, she is told she should have no action

for coercion that reaches the pictures. Because films of women

being raped and enjoying it express a point of view about

women and sex, the fact that they cause assaults of other

women—conceded by the court—is not legally important.

The Ordinance, a law against sex-based discrimination, was

thus itself held to be discrimination on the basis of “viewpoint. ” This was apparently because the Ordinance takes a stand for sex equality, not against it. This was because the

Ordinance is not neutral on the subject of sex-based exploitation, abuse, and discrimination. Every practice expresses a point of view; acts express ideas. Yet acts and practices are legally restricted anyway, and they do not have to be proven expressionless first. Segregation expresses the view that Blacks are inferior to whites and should be kept separate from them.

Segregation is often enforced with pure speech, like signs that

read “Whites Only. ” Segregation is not therefore protected

speech. Such a sign is not a defense to a civil-rights violation

but evidence of it. Laws against segregation are not discrimination on the basis of viewpoint, although they absolutely prohibit the view that Blacks should not mix with whites from being expressed in this way. This is true even though deinstitutionalizing segregation as a practice in the world does a great deal to undermine the point of view it expresses.

Indeed, most discrimination revolves around words, words

that are clear vehicles for an ideology of exclusion or access

Civil Rights and Speech

59

and use—words like “You’re fired, we have enough of your

kind around here, ” “Sleep with me and I’l give you an A, ” or

“Constituent interests dictate that the understudy to my administrative assistant be a man. ” Discrimination in employment or housing or through sexual harassment could not be addressed by law, far less be proven to have happened, if their

speech elements rendered the entire cycle of abuse protected

because the words so central to their actualization express a

point of view.

Lynching expresses a clear point of view about Blacks, one

it is difficult to express as effectively any other way. One point

of lynching is that other Blacks see the body. The idea expressed by the body being hung on view in public is that al Blacks belong in a subordinate position and should stay there

or they wil be hor ibly brutalized, maimed, and murdered

like this one was. Another point of lynching is that whites see

the body. Its display teaches them that they are superior and

this was done for them. Photographs were sometimes taken of

lynchings and made available for 50 cents apiece. Compare

such a photograph with a 1984 Penthouse spread in which

Asian women were bound, trussed, and hung from trees. One

cannot tell if they are dead or alive. In both cases, individuals

are hung from trees; often the genitals were displayed. In both

cases, they are people of color. In both cases, sexual humiliation is involved. But because the victim of the lynching is a man, the photograph is seen to document an atrocity against

him and an entire people, while, because the victim of the pornography is a woman, it is considered entertainment and experienced as sex and called speech and protected as a constitutional right.

If lynchings were done in order to make photographs, on a

ten-billion-dollar-a-year scale, would that make them protected speech? The issue here is not whether the acts of lynching are illegal or not. (As with the acts surrounding pornography, on paper they mostly were illegal, while in reality they mostly were not—not until a specific law, a civil-rights law, was

passed against them. ) The issue is also not whether lynchings

or sexual atrocities can be visually documented. The issue is

60

Pornography and Civil Rights'

rather, given the fact that someone must be lynched to make

a picture of a lynching, how is a picture of a lynching regarded, socially and legally. If it takes a lynching to show a lynching, what is the social dif erence, really, between seeing

a lynching and seeing a picture of one? What would it say

about the seriousness with which society regards lynching if

actual lynching is illegal but pictures of actual lynching are

protected and highly profitable and defended as a form of

freedom and a constitutional right? What would it say about

the seriousness and effectiveness of laws against lynching if

people paid good money to see it and the law looked the other

way, so long as they saw it in mass-produced form? What

would it say about one’s status if the society permits one to be

hung from trees and calls it entertainment—cal s it what it is

to those who enjoy it, rather than what it is to those to whom

it is done?

Courts have often sided with those who would lose power

if equality were taken seriously. One way courts have done this

is by invalidating effective measures against discrimination by

calling them discrimination in reverse, or reverse discrimination. The Court of Appeals did exactly this in its decision in the legal chal enge to the Ordinance: it called legislative action against discrimination itself a form of discrimination. The court thus actively supported discrimination by blocking legal

action against it. In other words, the court acted as if state-

sanctioned sex inequality were state neutrality on the subject

by holding that allowing citizens to pursue sex equality was

state-sanctioned discrimination. In this way, acting against discrimination was made indistinguishable from discrimination itself, and inequality was made indistinguishable from equality

as a state policy goal. Although the court did not for a moment question that pornography is a form of sex discrimination, it seemed not to understand that in protecting the pornographers, the court embraced admitted sex discrimination as state policy. In perhaps its final conceptual perversity, the

Seventh Circuit elevated the law against obscenity—and obscenity is nothing but an idea that depends on moral and value judgments, which themselves depend entirely on point of

Civil Rights and Speech

61

view—as a standard by which to find the Ordinance, which

restricts bigoted acts, unconstitutional as a form of “thought

control. ”

Yes, pornography is propaganda; yes, it is an expression of

male ideology; yes, it is hate literature; yes, it is the documentation of a crime; yes, it is an argument for sexual fascism; yes, it is a symbol, a representation, an artifact, a symptom of male

dominance; yes, it conveys ideas as any systematic social practice does. It is also often immoral, tasteless, ugly, and boring.

But none of this is what pornography distinctively is, how it

works, what is particularly harmful about it, or why we have

to stop it. Was the evil of the Holocaust what it said about Jews?

Was ending it a form of thought control? If Dachau had been

required to make anti-Semitic propaganda, should it have

been protected speech? Pornography is a systematic act

against women on every level of its social existence. It takes a

rape culture to require and permit it. It takes acts against

women to make it; selling it is a series of acts (transactions)

that provide the incentive to make it and mass-produce the

abuse; consuming it is an act against women and spawns more

acts that make many more women’s actual lives dangerous,

meaningless, and unequal. It is therefore an act against

women to protect and defend it.

Women, it is said, should be loyal to pornography because

our freedom and equality depend on protecting it. This is because pornography, it is said, is freedom and equality, so doing anything about it is repression, fascism, and censorship. In

practice, this has meant that whatever the pornographers do

is “speech, ” and whatever those who oppose them do is censorship. Actually, this is a mat er of point of view. Whoever takes the point of view that pornography is “speech” takes the

of icially protected viewpoint, hence is ut ering “speech” that

is protected as such.

Whoever takes the point of view that pornography is a practice of censorship and silence and institutionalized deprivation of liberty is, in this view, practicing censorship, even if only words are used. This point of view can be silenced in the

name of speech. Women screaming in pain in a pornography

62

Pornography and Civil Rights

film is “speech. ” Women screaming in the audiences to express their pain and dissent is breach of the peace and interferes with “speech. ” “Snuf ” is “speech. ” Demonstrators who use strong language to protest “Snuf ” are arrested for obscenity. When Penthouse hangs Asian women from trees, it is

“speech. ” When antipornography activist Nikki Craft leaflets

with the same photographs in protest, she is threatened with

arrest for public lewdness. When B. Dalton sells pornography

in a shopping mall displayed at a child’s eye level, that is

“speech. ” When Nikki Craft holds up the same pornography

in the same shopping mall in protest, she is detained in a back

room of B. Dalton’s by the police for contributing to the delinquency of minors. When pornographers make pornography of feminists, that is “speech. ” When publishers refuse to publish feminist work, saying that publishing Andrea Dworkin is bad for freedom of speech because of her opposition to pornography, that is the way freedom of “speech” is supposed to work. Nor could she get an article published discussing these

examples.

When the At orney General’s Commission on Pornography

wrote a let er to solicit information on pornography sales, the

Commission was sued by pornographers saying that these

words were intimidating, and a court enjoined publication of

the results. Now, the pornographers censor the government

in the name of freedom of speech, while those who speak of

women’s rights against pornographers are called censors for

trying to do something about it.

When the Seventh Circuit’s decision on the constitutionality of the Ordinance was appealed to the U. S. Supreme Court, a new kind of silence enveloped it: the silence of the powerful. The Court disposed of the case by a procedure called summary affirmance, meaning no writ en briefs, no oral arguments, and no reasons. This procedure, designed primarily for cases that prior law has clearly resolved, was highly unusual for the Court to use in this sort of case, one in which a federal Court of Appeals invalidated a local ordinance on a

U. S. constitutional ground on a theory the Supreme Court

had never heard before. The Supreme Court (with three dis-

Civil Rights and Speech

63

sents) summarily affirmed the Court of Appeals decision, bare

of supporting authority, presumably because there is none. In

this arrogant way, the Indianapolis Ordinance was in effect

found unconstitutional.

Technically, a summary affirmance upholds only the result

and whatever is essential to it; no view is expressed on the reasoning the court below used. So there is no way of knowing what the Supreme Court really thinks about the civil-rights

approach, because it said nothing about its reasons. The

Seventh Circuit’s decision remains a precedent until another

case on the Ordinance is heard. But the Supreme Court could

take another case on the Ordinance at any time without being

bound either by the logic of the Seventh Circuit decision or

by its own prior summary action. So the ultimate constitutionality of the civil-rights approach has not yet been determined.

The current barriers to its reenactment and use are political,

not legal—or, rather, they are politics disguised as law.

The truth is, a revised Ordinance taking the civil-rights approach could be passed today and ultimately receive new scrutiny before the Supreme Court. In a test of the constitutionality of such an Ordinance—perhaps in a real case brought by a victim of pornography, rather than by a media plaintif —

the role of the Seventh Circuit decision and the Supreme

Court’s summary affirmance would be one mat er to be argued. The summary affirmance would not mean that such an argument could not happen or that its outcome was already

decided in advance. If this was any problem other than pornography, any problem power wanted to solve—especially given the virtual invitation to try again provided by the three

Supreme Court dissents—state, local, and federal legislators

and their legal counsel would be falling al over themselves and

each other to be the first to devise an antipornography civil-

rights ordinance that would solve the problem yet be found

constitutional. Instead, in a capitulation to authority, it is

widely supposed that nothing more can be done. Media lies

have been widely believed that because of the summary affirmance, the civil-rights approach to pornography is constitutionally dead. As with slavery and segregation, which the U. S.

64

Pornography and Civil Rights

Supreme Court once held constitutional, what the courts say

is accepted and the truth is not. And, as with the pornography

itself, what the media says is believed and the truth is not.

Where we stand now is that protecting and defending pornography is the official state position. The courts have decided that an entire class of women wil be treated in these ways so that

others can have what they call freedom of speech: freedom

meaning free access to women’s bodies, free use of women’s

lives, speech meaning women’s bodies as a medium for those

others’ expression. As Black people were once white men’s

property under the U. S. Constitution, women are now men’s

“speech. ” It seems that our pain, humiliation, torture, and use

is something they want to say.

The complicity of law with the harm of pornography to

women has now gone a full step beyond tacit inaction, bungling, waffling, evasion, ineptitude, deceptiveness, or lack of wil . Now, the law has expressly lined up on the side of the

pornographers; now, the law has affirmatively decided that

pornography is more important than the women admit edly

harmed. This the law has done. This the law can and must

undo.

Civil Rights and Speech

65

66

Pornography and Civil Rights

Questions and Answers

Q: What is the difference between hard-core and soft-core

pornography?

A: Before pornography became an above-ground industry,

the distinction was pret y simple. “Hard-core” was pornography in which an erect penis was shown. The penis could belong to a man or to an animal. For this reason, the pornography of bestiality, which usually showed a male animal penetrating a woman, was considered to be “hard-core. ” There was a real taboo against showing the erect penis on the screen or

in magazines. Police were more likely to make arrests and to

confiscate material if the erect penis was graphical y shown.

As pornography became more mainstream, with more legal

protection, people inside and outside the pornography industry began to obfuscate the meaning of “hard-core. ” People outside the pornography industry, many of whom were not

consumers of pornography but felt that they knew what was

in it, began to use “hard-core” to refer to explicitly debasing

or violent material and “soft-core” to refer to material they

thought was purely sexual. “Hard-core” came to mean the

worst pornography, “soft-core” the most benign.

Because Playboy and Penthouse, for instance, were the most available and most legitimate pornography, they became the standard for “soft-core, ” material that was supposedly purely sexual, not

misogynist or violent. Currently in popular usage, “soft-core” is

virtually a synonym for Playboy and Penthouse. In one sense, both magazines are “soft-core”: neither shows the erect penis; in fact,

with rare exception, neither shows nude men. But in a more important sense, “soft-core” is a misnomer, because both magazines show violent and violating uses of women’s bodies; both magazines include overtly violent material; both magazines have material that promotes rape and child sexual abuse.

As used by most people, the two terms are fairly meaningless. Most often, “soft-core” means pornography that some-Quesdons and Answers

67

one thinks is okay; “hard-core” is pornography that someone

thinks is the real stuff, dirty, mean, and at least a little abusive

and repulsive. “Hard-core” has the aura of breaking taboos

around it and pornographers use it in advertising as a point

of pride.

The terms tell us nothing about how women are used in

pornography and nothing about how the pornography itself

is then used on women or children.

Q: How can you object to Playboy?

A: Playboy is a bona fide part of the trade in women.

The format of Playboy was developed to protect the magazine from prosecution under obscenity law. Writing from recognized writers was published to meet a standard of worth that would get the magazine First Amendment protection.

The First Amendment was then used by Playboy to protect its

sexual exploitation of women. Playboy sel s women.

The use of women as objects in Playboy is part of how Playboy

helps to create second-class status for women. Women in

Playboy are dehumanized by being used as sexual objects and

commodities, their bodies fetishized and sold. The term

“bunny” is used to characterize the woman as less than

human—little animals that want sex al the time, animals that

are kept in hutches.

The women in Playboy are presented in postures of submission and sexual servility. Constant access to the throat, the anus, and the vagina is the purpose. of the ways in which the

women are posed.

Playboy has made a specialty of targeting women for sexual

harassment: working women, including nurses, police, and

military personnel; and presumptively educated women, including university students and lawyers.

Underlying al of Playboy's pictorials is the basic theme of

al pornography: that al women are whores by nature, born

wanting to be sexually accessible to all men at all times. Playboy

particularly centers on sexual display as what women naturally do to demonstrate this nature.

68

Pornography and Civil Rights

Playboy, in both text and pictures, promotes rape.

Playboy, especially in its cartoons, promotes both rape and

child sexual abuse.

There is also some amount of overtly violent material in

Playboy. The text often enthusiastically promotes various acts

of violence against women, including gang-rape. The pictures

usually include some pictures that show sadomasochism:

women are hurt in them or are in some physical danger. (For

example, a woman is naked with acupuncture needles all over

her body, including in her breasts; or a woman is chained to

a pole and surrounded by laser beams. )

Hugh Hefner founded Playboy in 1953. An early issue used

an employee as a centerfold; as her employer, Hefner had sex

with her too. This has remained the pat ern, the women who

work for Playboy, especially the centerfolds, being Hefner’s own

primary preserve of women. As the Playboy empire has increased in power and wealth, Hefner’s personal use of the women in the magazine has continued and expanded. He uses

them and he sel s them. Now the women are brought to him by

lesser pimps; he need not do the recruiting himself. For instance, Linda Marchiano, known as Linda Lovelace in the pornographic film “Deep Throat, ” was pimped to Hefner by her then-husband, Chuck Traynor. Hefner sodomized her and

tried to have her have intercourse with a dog. Dorothy Strat-

ten, a Playboy centerfold who was sodomized, tortured,

murdered, then raped after she was dead by her pimp-husband,

Paul Snider, was tricked and intimidated into photo sessions by

Snider, who then sold the photos and access to Dorothy herself

to Hefner. Ms. Strat en said she was sexually molested by

Hefner. After her death, Hefner was made aware that Ms. Stratten had hated the pornography made of her and had hated posing for it. He responded by issuing more videotapes of Ms.

Strat en posing. Dorothy Strat en’s estate entered a brief in her

behalf in support of the Indianapolis Ordinance. The brief outlined how Ms. Strat en had been pressured into pornography.

The hope of her estate was that the Ordinance could be used

to recover and destroy videotapes and photographs (primarily

in back issues of Playboy) that are stil being trafficked in.

Questions and Answers

69

The women used by Hefner personally and in the magazine are rarely much over eighteen. Ms. Strat en was underage when she was initially pimped to Hefner.

The sexual exploitation of women is what the magazine is,

what it does, what it sel s, and how it is produced.

Q: Pornography is the fault of the women who pose for it.

Why don’t they just stop posing?

A: The women in pornography are most often victims of child

sexual abuse. Some studies show that 65 to 75 percent of the

current population of women in prostitution and pornography

(overlapping experiences for the same pool of women) have

been abused as children, usually in the home. People who work

with women who are in pornography and prostitution to provide social services or counselling, some of whom have been in pornography or prostitution themselves, believe the percentage

is much, much higher. Children run away from home, from the

sexual abuse, to cities where they are picked up by pimps, raped,

beaten, drugged, and forced into prostitution or pornography.

Women in pornography are poor women, usually uneducated.

Pornography exists in a society in which women are economical y

disadvantaged. The only professions in which women make more

money than men are modeling and prostitution—and in prostitution, the pimps keep most if not al of it. Women’s economic value is determined largely by sexual value: how much the

woman’s body is worth in the marketplace as a commodity.

Many women are forced into pornography as children by

fathers who sexually abuse them; pornography is made of

them as part of the sexual abuse they experience as children.

Many women are forced into pornography by husbands,

many of whom are violent (bat ery of married women being

the most commonly committed violent crime in the country).

Many women are photographed by lovers and find the photographs published as pornography in revenge or retaliation.

Aspiring actresses and models are photographed nude, almost

a trade practice, and find the photographs published against

their wil and without their knowledge in pornography.

70

Pornography and Civil Rights

When a woman has been forced into pornography, the pornography itself is used to keep her in a life of sexual exploitation and abuse. Think of what happens when a bat ered wife asks for help. She is doing what society says women should do:

she is married, and the sustained bat ery is proof that she has

been loyal to her husband, she has stayed with him, the way

women are supposed to. She may be badly hurt over a period

of years. When she leaves home, she is often treated as a pariah, told the brutality is her own fault. Now think of the woman forced into prostitution. She is without the so-called

protections of a respectable life. She has been abandoned, if

not injured in the first place, by her family. Society has no

place for her and despises her for what she has been doing.

The photographs of her engaging in violating sex acts—violating of her—usually show her smiling, as if she enjoyed being used or hurt. Where can she turn? Where can she run?

Who wil believe her? Who wil help her? Will you? (If you

won’t, don’t assume anyone else will. )

The pimp or pornographer wil come after her. If he is her

husband or her father, he wil have a legal right to her. He

wil be violent toward her and toward anyone who tries to help

her. She wil be terribly hurt from the life she has been leading: she wil be injured from the pornography and prostitution; she may be addicted to many drugs; she wil be filled with anger and self-hate and despair.

Bat ered women’s shelters, of which there are not enough,

many of which are understaffed, wil probably not of er her

shelter. They are afraid of the pimps and they are afraid of

the host of antisocial behaviors that the woman herself may

demonstrate. Rape crisis centers do not have resources to of er

shelter at al but they are also not prepared to counsel prostitutes, even though most have been raped many times and suf er the trauma of multiple rape.

The women in pornography are the first victims of pornography. The pornographers, not the women they hurt, are responsible for pornography. The men who buy and use the pornography are responsible for pornography, not the

women who are violated to make the product they so enjoy.

Questions and Answers

71

And the society that protects the pornography is responsible

for pornography: the courts that value the so-called rights of

the pornographers over the humanity, the dignity, the civil

equality of women; the publishers and writers who keep protecting the trafficking in women as if the commercial violation of women were a basic right of publishing; the lawyers, the

politicians, the media, who congregate to chant self-righteous

litanies in worship of the Constitution while women are raped

for fun and profit under its protection.

Q: Isn’t pornography just a symptom, not a cause, of

misogyny? Pornography didn’t cause patriarchy, did it? It’s

not really important, is it?

A: An incredible double standard is always applied to thinking about or doing anything about pornography.

If pornography hurts women now, doesn’t something need

to be done about it? I f women are hurt in making pornography,

doesn’t something need to be done? If pornography is used to

choreograph and execute rape, incest, battery, and forcing

women into prostitution, doesn’t something need to be done?

If pornography actually creates attitudes and behaviors of

bigotry and aggression against women, as many laboratory studies demonstrate, doesn’t something need to be done? If pornography causes rape, or sexualized torture, or increases sadism against women, or plays a role in serial murders, or contributes substantially to legitimizing violence against women, isn’t it important to do something about pornography? If pornography spreads woman hating and rape as mass entertainment, how can feminists ignore or be indif erent to it as a political issue of equality? Think about the maxim “Equal pay for equal work. ” We understand that women are hurt by being

paid less than men for doing the same work. Lower pay keeps

us poorer, which debases the quality of our lives, and keeps us

dependent, which does the same. Pay discrimination did not

cause patriarchy. Pay discrimination is a symptom of women’s

lower status. It is a result of misogyny, not a cause. At the same

time, pay discrimination perpetuates women's lower status (by

72

Pornography and Civil Rights

keeping us poor) and confirms men in their misogyny (the conviction that women are worth less than men). No one would suggest that feminists abandon the fight, including the legal

fight, for equal pay because it is “only a symptom, ” not a cause,

of patriarchy itself.

Now, in fact, feminists want equal pay for work of comparable worth. Because the job market is still highly sex-segregated and the jobs women do are economically devalued because women do them, feminists are proposing that men and women should be paid the same if their jobs, though different, have similar economic and social value. We have got en legislation passed in some places mandating equal pay for

comparable work. We have claimed economic equity as a right

and we want society to be reorganized so that we can realize

that right. The economic disparity between men and women

is a symptom of male supremacy, but, however symptomatic

it is, it injures women, so we want to stop it. In get ing rid of

this symptom of male supremacy, we also know that we would

make male supremacy a little less supreme.

Have you ever had a very high fever—104° or 105°—just the

symptom of a serious, underlying disease or infection? You had

bet er believe that the first order of business is to reduce the fever

because, even though it is a symptom, it may wel jeopardize your

life and on its own can irreparably damage your health. And you

wil feel very sick with the fever and less sick without it.

Some symptoms are pret y terrible, and it is important to

try to get rid of them.

With pornography, there is massive evidence that pornography is not only a symptom of misogyny but an active agent in generating woman-hating acts and second-class status for

women. Pornography sexualizes inequality and the hatred of

women so that men get sexual pleasure from hurting women

and put ing women down. It creates bigotry and aggression.

It desensitizes men to rape and other forms of sexual violence

against women so that they do not recognize the violence as

violence, or they believe the woman provoked and enjoyed it.

Pornography is used as a blueprint for sadism, rape, and torture. It is used to force women and children into prostitution.

Questions and Answers

73

It is used to coerce children into sex. Sex offenders use it to

plan their crimes and to prime themselves to commit their

crimes. It is implicated in the biographies of serial murderers

and in the commissions of the murders themselves. It is more

than a very high fever. It does as much damage as low pay.

How can we justify not doing something about it, whether it

is a symptom or a cause?

Some people claim that pornography is irrelevant to violence against women. They say that pornography is new and contemporary and that rape, battery, and prostitution are old.

They say that pornography cannot be a cause of violence

against women because violence against women existed long

before pornography.

This is not true, but suppose it were.

Even if pornography is a cause now, and never was before,

we would have to do something about it now. Think about environmental pollution. It causes various kinds of cancer (though those who make the pollution don’t think so). Cancer existed

long before the kinds of environmental pollution that come

from highly industrialized societies. But this does not mean that

pollution in our society does not cause cancer in our society.

In fact, pornography has a long history in Western civilization (and in Asian and other civilizations too). Its history is as long as the documented history of rape and prostitution (the socal ed oldest profession, the misogynist meaning being that as

long as there have been women, women have prostituted themselves). We can trace pornography without any dif iculty back as far as ancient Greece in the West. Pornography is a Greek

word. It means the graphic depiction of women as the lowest,

most vile whores. It refers to writing, etching, or drawing of

women who, in real life, were kept in female sexual slavery in

ancient Greece. Pornography has always, as far back as we can

go, had to do with exploiting, debasing, and violating women in

forced sex. Drawings, etchings, and writings were made of or

about the female sex slaves performing forced sex acts. Women

were used in brothels to create live pornography for men.

The invention of the camera changed the social reality of pornography. First, it created a bigger market for live women be-74

Pornography and Civil Rights

cause live women were required to make the photographs.

Someone could make a drawing out of his imagination or

memory. A photograph turned a living woman into an exploited

pornographic commodity. Pornography less and less existed in

the realm of drawing, contiguous with art and imagination, and

more and more it existed in the purposeful and exciting realm

of documented sexual violation. Photographs acquired commercial primacy, and this meant that pornography required the sexual exploitation and violation of real women to exist in a

world redefined by the camera. Second, mass means of producing the photographs democratized pornography. As writing, etching, or drawing, or as live shows in brothels, it had been

the domain of rich men, aristocrats. Now the technology made

it available to al men. Video has remarkably furthered this

trend, bringing pornography into the home, both the product

itself and the video camera that al ows the man to make his own

pornography of his wife or lover or child.

The role of writ en or drawn pornography in sexual abuse

before the invention of the camera was not studied. The rights

of women did not matter. The rights of women in brothels

were not an issue. Violence against women did not mat er. The

use of women in live pornographic scenarios or as models for

pornographic drawings did not mat er to the men who used

them or to the society that allowed these uses of women. If

writ en or drawn pornography was used in the sexual abuse

of women, prostitutes, or children, it did not mat er. None of

them had any legal rights of personhood.

The proliferation of pornography in our society, its use in

sexual assault, its widespread legitimacy, its legal impunity, its

accessibility, the need for real women to make the product in

a market constantly expanding in size and sadism, have presented the contemporary women’s movement with an emergency of staggering proportions: sexual sadism against women is mass entertainment; sexual exploitation of women

is protected as and widely understood to be a civil liberty of

men; the sexual violation of women in the pornography itself

is protected by the courts as “speech. ”

It’s a hell of a symptom, isn’t it?

Questions and Answers

75

Q: Okay, we try to dismiss pornography by saying it’s a symptom, not a cause, and we fight for pay equity even though low pay is a symptom. What other evidence is there of a double

standard?

A: In opposing pornography, feminists have been accused of

being essentially right-wing, or giving aid and comfort to the

political Right, or being in an alliance with the Right. These

charges were made long before the existence of the Ordinance. They were made as soon as feminists began to speak out about the woman hating in pornography and as soon as

feminists began to organize pickets and demonstrations to

protest the production and distribution of pornography. In

1970, feminists committed civil disobedience by sitting in at

the of ices of Grove Press to protest the publication of pornography there and the way Grove treated its women employees. The super-radical-leftist publisher/owner of Grove Press not only had the feminists arrested by the then very brutal New York City Police Department for criminal trespass on his private property—he also accused them of working for the

C. I. A. You can’t get a bigger charge of collusion than that one;

who cares that the man who made it was defending his profits, his pornography, his mistreatment of women workers (a/k/a “workers”)? Certainly, the Left saw him as a radical, not

as a capitalist. The Left continues to see pornographers as

radicals, not as capitalists. With the emergence of Jerry Fal-

wel on the national scene, feminists who opposed pornography were likened to Mr. Falwell, Feminist leaders were characterized as demagogues and puritanical opportunists in

ongoing campaigns of character assassination. Mr. Falwell

came to represent al that the Left detested in religion and

politics and feminists who opposed pornography were robbed

of their own political identities and convictions and caricatured as having his. Since Mr. Falwell had supported segregation in the 1960’s, had supported the Viet Nam War, currently does support the regime in South Africa and the militarism of Cold War anticommunism, opposes abortion

rights and gay rights, and since the feminist leaders of the an76

Pornography and Civil Rights

tipornography movement hold opposite views on each and

every issue, this was an extraordinary slander. But it was repeated as fact in mainstream newspaper articles and in the feminist press.

We don’t believe that this is done to people on other issues.

Take, for example, the often vituperative debate on the existence of the state of Israel. One of the women most active in calling feminists who oppose pornography right-wing has

writ en eloquently in behalf of the continued existence of the

state of Israel. Mr. Falwell also supports the continued existence of the state of Israel. We know that the reasons of this particular woman are different in kind and in quality from

Mr. Falwell’s reasons. Since Mr. Falwell’s expressions of support for Israel sometimes have an anti-Semitic edge and always have a Cold War rationale, it would be slanderous to say the same position, broadly construed, means the same politics,

or that her position does not exist independent of his. The New

York Times, which repeatedly denounces feminists who oppose

pornography and repeatedly links us with Mr. Falwell or his

Moral Majority, also supports the existence of the state of

Israel. We know their reasons are not Mr. Falwell’s. We know

their politics are not Mr. Falwell’s. We do not liken Nobel

Peace Prize winner Elie Wiesel to Mr. F alwell because both

support the state of Israel, or Natan Sharansky, or Jacobo

Timmerman. The New Jewish Agenda, a leftist group, supports the existence of the state of Israel, but its politics are opposed to, not the same as, Mr. Falwell’s.

Specious analogizing is ludicrous, no less on pornography

than on Israel. It is fair to say that there are many issues that

can be articulated broadly enough—pro or con—so that a

strange spectrum of folks seem to be on the same side.

Supporting Israel is one; opposing pornography is another.

But this has only been done to those of us who oppose pornography from a feminist perspective of radical equality. We have had to try to survive in an environment saturated with

this kind of intellectual lie and political slander. We never expected feminist media to fall for this propagandistic nonsense, but they did, repeating it over a period of years. We never ex-Questions and Answers

77

pected the Left to descend to this gut er level of intellectual

corruption but they did, apparently without a second thought

and with no remorse. Ultimately the effect was to erase our

political identities. Women, of course, are used to being erased

from political dialogue and history but not by folks who apply

the word feminist to themselves.

The double standard was also alive and wel when feminists

who opposed pornography were told to shut up to protect free

speech. Again, from the very beginning, before feminists

created or endorsed any legal strategies against pornography,

we were told repeatedly that anything we said or did against

pornography would endanger free speech. For instance, when

we were protesting the film “Snuf * in New York City in February 1976, one civil-liberties stalwart wrote in his regular newspaper column that we should stop picketing the film because our picketing endangered free speech. His reasoning was that in response to the pickets a theater manager might

decide not to show “Snuff” This was the danger our picketing

created. Picketing, of course, is a quintessential exercise of free

speech. The whole idea of free speech is that someone might

change their mind and their behavior. At least, this is the whole

idea of picketing. Picketing is not usually friendly and compliant and supportive speech. Usually it is speech in opposition to what is going on, and it is speech that wants results. This

civil libertarian believed that the showing of “Snuff’ was vital

to free speech and our picketing was not. Over a period of

years, in newspaper articles, on editorial pages, in debates, we

were told, usually with polite condescension, sometimes in a

holy rage, that we were endangering free speech by talking

about pornography: that is, by articulating a political opposition to it. A New York Times reporter was told by a chief editor that The New York Times would no longer carry news stories

about the feminist political opposition to pornography. This

occurred in 1978, after the reporter had published a superb

news story objectively describing a major conference on pornography at New York University law School. The chief editor said that such news stories created a feeling against pornography that threatened the First Amendment. The New York 78

Pornography and Civil Rights

Times itself published an editorial denouncing the feminists reported on in the news story, characterizing our positions as

“shril ” and “hysterical. ” News stories disappeared from those

pages for many years. When impossible to suppress, such stories have been carried, usually slanted against us. Feminist authors writing on pornography have been repeatedly told

that such books would not be published because they endangered First Amendment rights. Magazine editors have rejected numerous articles by feminist authors opposing pornography on the same grounds: that to publish the articles would jeopardize the First Amendment. The same people who say the

pornographers must be protected because everything must be

published and protected are the first to say that feminist work

opposing pornography must not be published in order to protect free speech.

The feminist version of this pernicious nonsense has been the

insistence on having a propornography side represented whenever antipornography politics are expressed, in published or spoken forums. There are feminist right-to-life activists, but no

one in the women’s movement has been insisting that they get

equal time, let alone that they speak wherever and whenever

prochoice politics are expressed. These feminist right-to-life

groups began on the radical Left, in fact, in the nonviolence

movement. Now there are also more politically moderate feminists who are prolife and at the same time for the Equal Rights Amendment and the rest of the feminist agenda. Not only is

their participation not required at feminist events; they are not

allowed in the door. It is only on the issue of pornography that

those who support the pornography industry in the name of

what they cal feminism must speak whenever those who oppose pornography speak. Since pornography is a distillation of woman hating, linked in women’s experience to rape, battery,

incest, and forced prostitution, it is impossible to understand

how the moral and political imperative developed to have so-

called feminists speak in behalf of pornography. This can only

be understood as the feminist version of shut up.

The mainstream says: shut up to protect free speech. Feminists say shut up because if you speak we wil have other women Questions and Answers

79

here calling themselves feminists to defend this exploitation of

women. In this way, we wil wipe out what you have said. We

don’t do this to anyone else who stands up for the rights of

women, but we wil do this to you because we want you to shut

up. You make us feel bad. We can’t stand up to the pornographers. They are too mean, too real, and too powerful. We want to celebrate women. We don’t want to have to face how

powerless we are in the face of organized, profit-making male

cruelty. It has been hard enough for us to face rape, incest, and

battery. So we are having these women in here who say they

are feminists but enjoy calling themselves “girls, ” and they

want us to have fun having sex now, and they say pornography

is just part of liberated sex, and if they say so it must be true

for them so you aren’t even right when you say pornography

hurts women because it doesn’t hurt al women (it doesn’t hurt

these “gnT’-women), and if we listen to them we don’t have to

listen to you, which means, shut up.

And that is the sad consequence of yet another double standard. Large numbers of feminists listened with serious and honorable attention to women who exposed rape, incest, and

battery; but not as many feminists have listened with serious

and honorable attention to women who have been exploited

in pornography or raped or tortured or violated because of it.

Final y, feminist lawyers are responsible for yet another double

standard, this one cynical in the extreme. Feminist lawyers especial y seem not to want to do anything real about pornography.

They tel audiences of feminists that law isn’t the answer, that law

can do nothing, and that women should not go to the male state.

These women spend their lives and make their livings (substantial for women) going to the male state. These women take other sex-discrimination issues to the male state. These feminists have

clients who must think the law is some of the answer. These feminists who appear on behalf of their clients in court must have empirical proof that law can do something. They win sometimes.

It is not just that they oppose a specific legal remedy—for instance, the Ordinance. It is that they say as political truth that law is useless and make women feel like fools for doing something as ridiculous as contemplating “going to the male state. ”

80

Pornography and Civil Rights

Either these women lie to their clients or they lie to their

audiences. If they are lawyers and they practice sex-discrimina-

tion law and they go into court, how dare they tell other feminists it is sil y to do any of the above? They have used these broad and basical y indefensible arguments to undercut support for

the Ordinance in particular, but they do not have the courage

to say that (1) they use male law, (2) they use sex-discrimination

law, (3) they make money practicing law in the male courts, (4)

law is essential to social change, which is partly why they practice it; but they do not believe that women hurt by pornography should have legal remedies. Instead they breeze through debates

speaking as lawyers making anarchist arguments and speaking

as female functionaries of the male courts making separatist arguments. What they say and what they do never meet on the plane of reality. They are especially dishonorable in the double

standard they apply to pornography because they are specially

qualified to help women who have been hurt by it.

Al of these various applications of a double standard to pornography happen sometimes, not all the time. Small numbers of people, their voices and arguments enhanced by the purposeful support of the pornographers, manipulate everyone’s sense of reality or sense of justice.

Most women hate pornography; all pornography hates

women; and the masses of feminists here and in other countries are not confounded by these strategic uses of the double standard in defense of pornography. We note when a double

standard is used and try to understand how it works political y. The acceptance of a double standard for pornography is particularly painful when it happens within the scope of the

women’s movement. But the real political damage is done

when a double-standard tactic is used by those who have real

power: media, politicians, lawyers, publishers.

Q: Why are you dividing the women’s movement? The pornography issue is too divisive.

A: There have been many angry splits in the women’s movement over the years. The arguments and antagonisms have Questions and Answers

81

been aired, often in what seems like perpetuity, in the feminist press. What is dif erent about pornography is that the pornographers have used the so-called feminists who defend

pornography to defend it in mainstream forums and in mainstream media. Feminists who oppose pornography are under constant attack from the pornographers, who have their own

magazines, of course, and also tremendous influence with

newspapers, other periodicals, and radio and television producers. Women who defend pornography are picked up by the pornographers and spotlighted. Often, they find that

their careers, including academic careers, are advanced. They

suddenly have available to them many public forums in which

to express propornography politics usefully (for the pornographers) disguised as a mutation of feminism. Some of them take the vast sums of money the pornographers offer and publish attacks on feminists fighting pornography in the pornography itself. They attack feminists opposing pornography for the pornographers in forums opened up to them by the pornographers. They have allowed themselves to become the chicks-up-front through choices they have made.

There are hundreds of thousands of us, only a tiny number

of them. But the tiny number of them tend to be privileged

and well-placed: lawyers, academics, journalists. The

hundreds of thousands of us are women in al walks of life, but

not particularly well-placed. We tend to be poorer. Some of

us have been prostitutes or in pornography or have suf ered

some other form of egregious sexual violation.

We wish that they would stop, of course. One reason is that

the pornographers get so much political mileage out of them.

But another reason is that we feel ashamed for them. They

dishonor women.

The so-cal ed feminist split on pornography would have the

quality of a tempest in a teapot if not for the media exposure

choreographed by the pornographers. We fight the pornographers. Propornography women, calling themselves “feminists, ”

fight us. In and of itself, this is suspect as a practice of feminism.

Since 1968, feminists have been fighting the way the male

world objectifies women and turns women into sexual com82

Pornography and Civil Rights

modities. Since 1970, we have been fighting pornography.

There is no viable propornography feminism. Our legitimate

differences center on how to fight pornography. Without the

active interference of the pornographers, we would have been

able to resolve these differences—or we might have agreed to

let a thousand flowers bloom. Because of the complicity of the

propornography women with the pornographers, feminism

itself stands in danger of being irrevocably compromised and

the rights of women being hurt by pornography taking second place to public spectacles of what appears to be internecine conflict. The pornographers love it.

Q: What is the role of the American Civil Liberties Union?

A: The ACLU has been very active in defending the pornographers in the media. The ACLU has been very active in defending pornography as a genre of expression that must

have absolute constitutional protection: this they have done

in the courts.

The ACLU has taken money for a long time from the pornographers. Some money has been raised by showing pornography. The ACLU’s economic ties with the pornographers take many different forms, ranging from taking money from the

Playboy Foundation to being housed for a nominal rent ($1

per year) in a building owned by pornographers. Sometimes

lawyers represent the ACLU in public debate and as individuals work for pornographers in private. Their personal incomes, then, are largely dependent on being retained by the pornographers. In public they are spokesmen for high-and-mighty principles; in private, they do whatever the pornographers need done. For instance, one such lawyer represented the ACLU in many debates with feminists on pornography. He

talked about the importance of free speech with serious elegance and would brook no exceptions to what must be protected because, he said repeatedly, if any exceptions were made, “feminist and gay” speech would suffer. Then, as the

private lawyer for a pornographer, he sued Women Against

Pornography for libel because on television a member de

Questions and Answers

83

nounced the pornographer for publishing cartoons that por-

nographized children. This is one way the ACLU helps pornographers wage war on feminists: high-toned in public; political destruction in private by use of money, power, and

ACLU lawyers. The ACLU itself also has a record of defending child pornography by opposing any laws against it as constitutionally prohibited incursions on free speech.

The ACLU has also provided money and of ice space for

FACT, a group that cal s itself feminist, opposes the Ordinance,

and defends pornography as a significant expression of women’s

free sexuality. One ACLU staff person was instrumental in

founding FACT and often represents FACT in public while continuing to rise on the ACLU staf . Perhaps the most telling detail, a picture to hold in your mind, is this one: ACLU men and FACT

women sat with representatives of Penthouse at a meeting of the

Attorney General’s Commission on Pornography in New York

City in 1986. Al three factions together heckled a feminist

speaker whose subject was the sexual abuse of women.

The ACLU’s stated commitment is to protect the Bil of

Rights, the first ten amendments to the Constitution, not pornography as such, though it’s hard to tell sometimes. Without a commitment to real equality of the same magnitude as its

commitment to those first ten amendments, the ACLU

defends power, not rights. No mat er how notorious the exploitation, as for instance in child pornography, the ACLU

ends up substantively defending those who exploit the powerless. The ACLU demands a literal reading of those first ten amendments, especially the First Amendment, especially its

speech provision. This is an exceptionally conservative position both philosophically and politically and it has a conservative political outcome: it keeps already established pat erns of inequality intact.

The ACLU has refused to consider the role of sexual abuse

in keeping women silent, or how poverty keeps women,

Blacks, and other minorities from having access to the means

of communication. The ACLU refuses to accept responsibility

for the fact that in the United States speech has to be paid for

in money. The ACLU defends the power of corporations who

84

Pornography and Civil Rights

own and control the means of speech against the aspirations

of dissidents who have been excluded from the circle of protected speech by sex or race.

We also frankly abhor the ACLU’s defenses of Klan and

Nazi groups. The ACLU has a long history of protecting the

most virulent racism. In protecting pornography, this purposeful policy continues. Pornography sexualizes racist hatred. It uses racially motivated violation, torture, and

murder as sex acts that lead to orgasm. We believe that racist

pornography is one source of the violence against Blacks and

other minorities that is ongoing in this society. We believe that

it is a dynamic source of racist violence.

The pornographers rank with Nazis and Klansmen in promoting hatred and violence. Their targets are always sex-based and sometimes race-based. Like the Nazis and the

Klansmen, they commit the acts of violence they promote.

They conduct a war against women that spreads terror.

We have asked the ACLU repeatedly over many years to

protect the rights enumerated in the Bil of Rights by taking

the cases of powerless or disenfranchised people, not exploiters, abusers, or purveyors of genocide. The ACLU has remained indifferent to this idea.

Q: But, under the Ordinance, won’t gay and lesbian materials be the first to go?

A: In some places, under obscenity laws, graphic sexually explicit materials presenting homosexual sex acts are made illegal perse. The Ordinance does not do this. The Ordinance requires proof of actual harm before any materials can be found illegal. The harm cannot be a moral one—say, that someone

is of ended by the materials or believes they are not proper

family entertainment or finds that they violate their religious

beliefs. The harm proven must be a harm of coercion, assault,

defamation, or traf icking in sex-based subordination. The

fact that the participants in the sex acts shown are of the same

sex is not itself a form of sex-based subordination. Only materials that can be proven harmful can be reached, and only by Questions and Answers

85

their victims, not by the government. The particular question

of lesbian and gay materials under the Ordinance then becomes: if any lesbian or gay material can be proven to do harm to direct victims, is there a good reason that it ought to be exempt under the Ordinance simply because the materials show gay or lesbian sex?

Al pornography, from Playboy to “Snuff, ” is part of somebody’s sexuality, their authentic sexuality as they understand it. Their pornography is a sexual experience; it is sex to them.

Not surprisingly, these same people want to be reassured that

their favorite pornography is exempt from the Ordinance.

For example, when men say, You can’t mean Playboy! they are

saying, I use it, I enjoy it, I have a right to it, you are not going

to take it away from me, I don’t care whom it hurts. This

simply means, because I like it, nobody should be able to do

anything about it. It is special pleading pure and simple.

There is necessarily someone who feels this way about every

part of the Ordinance’s definition of pornography.

The broader question the Ordinance poses, then, is, Does

anyone have a right to materials that are produced through

coercion, that wil be forced on others, that are the cause of

assaults, that defame individuals, and that are integral to the

second-class status of half the population? Is anyone's sexuality—however conventional or unconventional, however sincere—more important than the lives that must be, wil be, ground up and spit out in little pieces in the making and use

of the pornography so that the consumer’s sexuality can be

provided with what it needs, wants, or enjoys? Is the sexuality

of the pedophile more important than the freedom from

sexual exploitation of the child? Is the sexuality of the woman

hater more important than the freedom from sexual slavery

of the woman coerced to model for sadomasochistic pornography? for forced fellatio? Is the sexuality of the nice but lonely guy more important than the unequal life chances of

all the women whose lives are endangered, made hollow, reduced a little or reduced a lot, because what he wants he gets?

Is some gay men’s access to pictures of subordinating gay sex

more important than the right of men or boys not to be raped

86

Pornography and Civil Rights

or violated so that pictures can be made of them, or the desire

of other gay men to shape a community free of eroticized self-

hatred? The point of considering all these questions at once

is this: if harm is done, and it is based on gender, neither the

particular sex acts performed nor the gender of those who get

hurt should determine whether their civil rights are protected

or not.

Because the particular acts do not change the damage done,

and because harm is stil harm when done by women to women

and by men to men, there is no special exemption in the Ordinance for gay and lesbian materials. We are frankly mystified as well as anguished that there are lesbians who identify with

and defend the pornographers’ woman-hating so-called lesbian sexuality. Al lesbians have necessarily suf ered from the pornographers’ definition of lesbian that is so central to the

violence, hatred, contempt, and discrimination directed

against lesbians in society. Al lesbians, in societies saturated

with pornography must live with the fact that the pornographers have made lesbianism into a pornographic spectacle in the eyes of men.

The Ordinance does not direct itself specifically against

same-sex materials as obscenity law has (with very lit le effect

in the United States). As a mat er of fact, it may be difficult to

persuade courts to apply the Ordinance to same-sex materials for the same reason that sex-discrimination law has been so useless to advancing the civil rights of gay men and lesbians: sex-discrimination law, of which the Ordinance is a part, has been largely obsessed with what it cal s “the gender difference” as defining its concerns. This implicit heterosexual bias to its definition of gender means that it has been difficult for

courts to see sex discrimination in a same-sex context. If the

at empt to apply the Ordinance to harmful gay and lesbian

pornography succeeds, it would provide a precedent that

could be used to apply sex-discrimination prohibitions to

other civil-rights violations of gay men and lesbians. It would

become part of a sexual politics and a civil-rights law that connects a feminist critique of male supremacy with a politics of gay and lesbian liberation.

Questions and Answers

87

Q: What do the American people think?

A: First, we have to tel you that a lot of people haven’t been

asked or haven’t been listened to. The women and children who

have been hurt through pornography—used to make it or had

it used on them in sexual assault—are stil a largely unidentified

population, in part because the pornographers retaliate. We wil

give you just one example. In Minneapolis, women went before

the City Council to say how they had been hurt in or by pornography. The experiences were horrible. They included rape, gang-rape, battery, torture, rape by animals, and more. Subsequently, one nationally distributed pornography magazine

published an article that identified the women by name and used

direct quotes from their testimony—quotes highlighted and

chosen to emphasize graphic sexual violence. As a result of this

article, the women without exception were harassed by obscene

phone cal s, fol owed, spied on, tormented by anonymous notes

and phone cal s, threatened over the phone and by notes and

letters. One woman had to move because her tormentor clearly

fol owed al her movements, including inside her own house.

Those who have the most to tel have good reason never to speak

in public.

Pol s tell us that most Americans believe that there is a causal

link between pornography and sexual violence. In a Newsweek

poll conducted in March 1985, 73 percent of those polled

believed that “sexually explicit” material (the euphemism of

choice in mainstream media for pornography) leads some

people to commit rape or sexual violence; 76 percent said that

this same material leads some people to lose respect for women.

Time magazine conducted a similar poll in July 1986. We

found the questions more confusing, with more vague or

double meanings, than those reported in the Newsweek poll;

but stil the results are startling: 56 percent of al those polled,

and 63 percent of the women polled, believed that “sexually

explicit movies, magazines, and books” lead people to commit

rape; 54 percent of al those polled, and 64 percent of the

women polled, believed that sexually explicit material leads

people to commit acts of sexual violence (apparently as dis88

Pornography and Civil Rights

tinct from rape). The Time poll found that pornography was

much more troubling to women than to men: 50 percent of

women were “very concerned”; only 27 percent of men

figured in this category of highest concern. A total of 61 percent of the people pol ed believed pornography encourages people to consider women as sex objects: 50 percent of men

thought this was true, 71 percent of women.

A survey conducted by the American Bar Association in

September 1984 (in response to the Indianapolis Ordinance)

and published in the ABA Journal in March 1985 queried 600

lawyers, half of whom were ABA members, half of whom were

not. 66 percent of the total, and 82 percent of the women,

thought that some pornography contributes to violent crimes

against women; 70 percent of the total, and 89 percent of the

women, thought that some pornography is discrimination

against women.

The most astonishing and important survey was done by a

mainstream women’s magazine geared largely to homemakers, Woman's Day, in January 1986. 90 percent of the 6, 100 respondents believed that pornography encourages

violence against women. 25 percent said that they had been

sexually abused by someone they knew as a direct result of his

access to pornography. This 25 percent did not represent

those who had been sexually abused in ways not involving pornography; nor did it represent those who had been abused, even if pornography were involved, by a stranger. This is a

staggering percentage of pornography-caused abuse to come

out of this or any other population of women.

80 percent of the Woman’s Day respondents wanted al pornography outlawed. Less than 2 percent of this pool of people thought that freedom of speech was more important than the violence

against women generated by pornography. In the Time poll, 72

percent wanted the government to crack down harder on pornography (no separate figure is given for women). Asked if magazines with nude pictures should be outlawed in local stores, 59

percent said yes—49 percent of men, 67 percent of women. In

the Newsweek poll, 73 percent thought that magazines that show

sexual violence should be totally banned (as compared, for in

Questions and Answers

89

stance, with 21 percent who thought that showing nudity should

be totally banned). 68 percent wanted a total ban on movies that

depict sexual violence. 63 percent thought that the sale or rental of videos featuring sexual violence should be totally banned.

The ABA did not ask lawyers any questions about total bans.

Instead, lawyers were asked about the Indianapolis Ordinance.

Only 24 percent of those polled thought that the Ordinance

constituted any form of censorship. 30 percent thought it was

overbroad and 25 percent thought it was too vague. Both overbreadth and vagueness would be legal grounds for finding the Ordinance unconstitutional, but neither has anything to do with

the basic principles of the Ordinance itself—so that, for instance, a redrafted version might not elicit these same objections from these same people. (In fact, the Seventh Circuit did not find the Ordinance to be either vague or overbroad. ) 26

percent of al the lawyers polled thought the Indianapolis Ordinance was constitutional as drafted. 30 percent said it would be constitutional as drafted if studies proved conclusively that pornography leads to violence against women. (Presumably, then it would not be “overbroad” or “too vague. ”) 42 percent of the

lawyers fifty-five or older were in favor of the Ordinance.

Al of these polls and surveys have one element overwhelmingly in common: people, and especially women (whether, for instance, in the sample of women lawyers or readers of

Woman's Day) believe, know, understand, that commercially

available pornography causes sexual violence against women.

Q: Why is the Ordinance so important?

A: The Ordinance puts power in the hands of those who have

been hurt by pornography. It recognizes pornography as sex

discrimination: as a source of sexual abuse and second-class

status, especially for women.

The Ordinance brings the harm of pornography into the

light where everyone has to see it and society must deal with

it. It al ows those hurt by the bigotry, hostility, and aggression

caused by pornography to seek legal remedies that are fair.

The Ordinance al ows people to collect money damages from

90

Pornography and Civil Rights

the pornographers. The Ordinance allows injunctions against

pornography that has caused social and sexual harm to

women, children, men, and transsexuals. We have to stop the

traf icking and the profits in order to stop the whole system of

abuse and exploitation called pornography. Injunctions narrowly directed against the material that does the harm (causes second-class status, causes sexual violence, is made from coercion in the first place) and money damages wil go a long way toward stopping the pornographers from destroying lives for

profit. The industry, we believe, cannot survive the Ordinance.

Those who defend pornography and oppose the Ordinance

also believe that the pornography industry cannot survive the

Ordinance. Pornographers especially understand this, because they know they cannot create pornography without hurting women and they know that the pornography is used

to sexually violate women and children. They even know that

pornography keeps women’s civil status low, because they

know how much contempt for women is necessary to view violation as entertainment. If they are held accountable for the harm they do, including the harm to women’s civil status, they

cannot continue to produce or distribute their product.

Because the pornography industry cannot survive the Ordinance, you wil hear the Ordinance called “censorship. ” People who say this mean that to them a society without pornography

is one in which freedom is by definition restricted. In a free

society, they maintain, there is pornography. We think that a

society without pornography would be one in which women

especially would have more freedom, not less. We think that

the Ordinance does not take “rights” from anyone; we think it

takes the power to hurt women away from pornographers. We

think that the freedom to exploit and hurt women is no freedom at al for women. We believe that it is wrong to talk about freedom as if everyone has it when women are being violated

for purposes of profit and entertainment. We think we have a

right to freedom from second-class status and sexual abuse. We

think that the Ordinance wil force real social change. We think

the Ordinance wil help us toward social and sexual equality

by stopping an industry built on our pain. We think the Ordi

Questions and Answers

91

nance is a restrained means of achieving this end. It does not

expand police power. It expands the rights of actual people:

people who want human dignity and civil equality.

The Ordinance challenges the legal system in this country

to recognize the human worth of women.

The Ordinance gives women a forum of authority—the

courts—in which to make arguments in behalf of equality. The

Ordinance gives women a forum of authority—the courts—

in which to articulate the injuries of sexual inequality: what

they are, how they operate, why they must be disavowed.

Final y, the Ordinance gives women who have been treated

like slaves—the women in pornography and the women on

whom pornography is used in rape, torture, battery, and other

sexual abuse—real rights of citizenship. If one’s human rights

are violated and one has no recourse, one has no viable rights

of citizenship. Pornography violates the human rights of

women purposefully and systematical y. The Ordinance provides a remedy that gives women the dignity of citizenship.

Q: How can we pass the Ordinance?

A: The Ordinance can be passed as an amendment to an already existing civil-rights law. Or the Ordinance can be passed as a freestanding statute. If the Ordinance is amended to a

civil-rights law, complaints would initially be made to a civil-

rights board. If the Ordinance is freestanding, a person would

go directly into court.

There are basical y two ways to get the Ordinance passed into

law. One is through legislative bodies: city councils, state legislatures, or Congress. The second is by direct initiative of the voters, popularly called a “referendum. ” In many states and cities,

voters can initiate legislation. First, signatures are collected on

petitions to put the law on the ballot in the forthcoming election.

Once the law is on the ballot, there is a direct popular vote.

Working with legislative bodies, we have found that the

power of the pornographers is both massive and secret. In many

cities, they own big hunks of important real estate and exercise

economic power in municipal governments by manipulating

92

Pornography and Civil Rights

real estate, both buildings and land. Newspapers take their side.

They have many legitimate friends with influence, especially

lawyers. They also threaten and bribe politicians.

Working with direct popular voting, we have found that the

pornographers pour money into defeating the legislation and

that newspapers take their side and that they have many legitimate friends with influence, especially lawyers. But they cannot threaten and bribe the whole population. They have less power the more democratic the process itself is.

In Cambridge, Massachusetts, in 1985, the Women’s Alliance Against Pornography (WAAP) conducted a campaign to pass the Ordinance by the referendum process of placing it

on the bal ot to be voted on in the next election. These activists collected 5, 252 certified signatures of registered voters—

over 1, 500 more than were needed under Cambridge’s laws.

Even though every legal requirement for having the Ordinance on the bal ot had been met, the Cambridge City Council voted twice to keep it off the ballot. (Two years before, the City Council had similarly refused to place a “Nuclear Free

Cambridge” proposal on the bal ot. ) In trying to fight this illegal act by lawmakers, WAAP contacted virtual y every politically active human-rights law firm in the Cambridge-Boston area. Not one would act to protect the rights of women for

access to the ballot. Finally, legal representation was found in

Springfield, Massachusetts, 90 miles away, by an all-women

law firm. A member of WAAP, as a registered voter, sued the

members of the Cambridge City Council for an injunction to

put the Ordinance on the ballot. She won, and the City was

ordered to comply with the law and to honor her rights as a

citizen. Unlike the legislative process, the referendum process

provides ordinary citizens with some legal protections.

You can pass the Ordinance either by get ing your elected

of icials to vote it into law or by put ing it on the bal ot so that

all the people in your city or state can vote on it.

Because the pornographers fight dirty, many people are

afraid to chal enge them by initiating this legislation. Politicians are certainly afraid, but so are regular citizens. Many women wil find themselves having to talk publicly about por

Questions and Answers

93

nography-caused sexual abuse they have experienced. Organizers wil be threatened and harassed. Money is hard to come by for those who want to stop the pornographers while

the pornographers themselves have unlimited funds. Those

who defend pornography are verbally abusive in public dialogue. Once the law is passed, it wil be challenged immediately in court by the pornographers or those who front for them. This means a protracted legal struggle, again without

the legal or economic resources that the pornographers take

for granted. Every cent they use to try to defeat the Ordinance

from being passed or in court they made off of women’s exploited bodies. This makes it especially painful to be poor.

The Ordinance wil never be law unless you decide to make

it law. If you won’t, don’t assume that someone else wil . If you

believe that women have a right to equality and dignity, you

wil probably find the Ordinance a pret y good idea. Then

you have to start working for it. This is not a movement that

has top-down leadership; it is a grass-roots movement, a decentralized movement, a movement that depends on everyone’s courage and commitment. It is a movement that wil succeed or fail depending on you, on what you do or do not

do. The Ordinance represents integrity for the women’s

movement and it is the only source of hope for women hurt

by pornography. The Ordinance is a new way of approaching

civil and sexual equality. It is rooted in a recognition of the

ways in which women are really hurt; it challenges real power.

The Ordinance is the real thing, a legal tool with which feminists can redistribute power and radically alter social policy.

Feminists have been fighting pornography for eighteen

years. Pickets, demonstrations, slide shows, debates, leaflets,

civil disobedience, al must continue. In fact, political dissent

from the world created by the pornographers and their friends

must intensify and escalate. In these eighteen years, feminists

have confronted pornography in cities and towns and villages

and in theaters and grocery stores and adult bookstores everywhere in this country. Passing the Ordinance does not mean stopping direct action; it means more of it. We are not asking

women to cool out and calm down and grow up and talk nice

94

Pornography and Civil Rights

to your Congresspeople. On the contrary: we are saying, make

demands. Make them loud. Make them strong. Make them persistently. Make the Ordinance one of your demands.

Q: Can we win?

A: The Ordinance was passed twice in Minneapolis by two

different city councils (an election occurred between the two

votes). Both times, the mayor vetoed it. The Ordinance was

passed in Indianapolis and signed into law by the mayor. The

city was sued for passing the law within one hour after it was

signed by the mayor. The Ordinance was on the bal ot for

popular vote in Cambridge, Massachusetts, where 42 percent

of the voters voted for it. We did not win, but we got a higher

percentage of the votes than feminists did on the first referendum ever held on women’s suf rage.

The Ordinance has already transformed the way people

think about pornography. It is no longer a question of “dirty”

books; it is now a question of women’s rights. For the first time,

the women in the pornography are counted among the

women who must have rights.

This is a long struggle for equality and dignity against a

very nasty enemy. It is a longterm struggle against sexual exploitation and entrenched inequality. We have to win, because the alternative is to give in to systematic sexual abuse of

women as entertainment; we cannot agree to live in a society

that enjoys sexual sadism against us. We have a right to live

in a world premised on our equality and our human dignity.

This is truth time. Do women’s rights really mat er? Do they

really mat er to you? Are you prepared to fight for them? Are

you prepared to make this society change so that your integrity and sense of justice are respected in the real world? How much does the life of the woman in the pornography mat er

to you? How much does the woman who has been abused because of the pornography mat er to you? How much does your own life mat er to you?

This is truth time. We can win if you care enough. Winning

depends on you.

Questions and Answers

95

96

Pornography and Civil Rights

Table of Authorities

American Booksellers, Inc. v. Hud nut, 771 F. 2d 323 (7th Cir.

1985), aff’d 106 S. Ct. 1172 (1986) (civil-rights antipornography

law found to violate First Amendment). . . . . . . . . . 58-65, 69, 95

Attorney General’s Commission on Pornography, Final Report

(July, 1986) (evidence on harm of pornography reviewed and

recommendations for action made)............................................. 25

Bogdanovich, P., The Kil ing of the Unicom: Dorothy Stratten

1960-1980 (New York: William Morrow, 1 9 8 4 ). . . . . . . . 69-70

Brown v. Board of Education, 347 U. S. 483 (1954) and 349 U. S.

294 (1955) (racial segregation in schools found unconstitutional;

ordered integrated).......................................................................7-8

Civil Rights Act of 1964 (sex and race discrimination

prohibited)............................................................. 7, 10, 12-13, 14

Dred Scott v. Sanford, 60 U. S. (19 How. ) 393 (1856) (slavery held

constitutional) .......................................... .................................7

Dworkin, A, “Against the Male Flood: Censorship, Pornography,

and Equality, ”9 Harvard Women’s Law Journal 1 (1985)

(subordination discussed in context of Ordinance) ... . . . . . . 39

First Amendment to the United States Constitution (guarantees

“freedom of speech and of the press” from restriction by

government; interpreted to protect freedom of association)

. . . . . . . 17, 19, 21-22, 26, 27, 58-60, 62-63, 68, 78-79, 84-85

Fourteenth Amendment to the United States Constitution

(guarantees “equal protection of the laws”) . . . . . . . . . . 7, 12, 14

Goldstein and Milky Way Productions, Inc. v. Frances Patai and

Women Against Pornography, Complaint, Supreme Court of the

State of New York (Oct. 10, 1984) (pornographer sues feminists

for libel)....................................................................................83-84

Lovelace, L. and M. McGrady, Ordeal (Secaucus, N. J.: Citadel, 1980) (coercion into pornography documented). . . . 42, 47, 69

Malamuth, N. and E. Donnerstein (eds. ), Pornography and Sexual

Aggression (New York: Academic Press, 1985) (laboratory evidence on connection between pornography and sexual aggression

discussed)....................................................................................... 25

Table of Authorities

97

Melendy v. Clinton, et al, Civ. Action No. 85-306, Cmnwlth.

Mass. Supreme Judicial Court (Sept. 27, 1985) (citizen

successfully sues Cambridge City Council to place Ordinance

on bal ot)........................................................................................95

Mil er v. United States, 413 U. S. 15 (1973) (obscenity defined,

held “not speech, ” al owed criminalized against claim of First

Amendment protection)............................................59, 61-62, 68

New York v. Ferber, 458 U. S. 747 (1982) (child pornography

defined as child abuse and al owed criminalized against claim of

First Amendment protection)................................... .............59

Nineteenth Amendment to the United States Constitution

(women granted right to vote) .................................................. 12

Plessy v. Ferguson, 163 U. S. 537 (1896) (segregation found

constitutional)............................................................................7, 9

Playboy Enterprises, Inc. v. Meese, 639 F. Supp. 581 (D. D. C.

1986) (Playboy censors government for inquiry by let er). . . 63

Public Hearings on Ordinances to Add Pornography as Discrimination

Against Women, Committee on Government Operations, City

Council, Minneapolis, Minn. (Dec. 12-13, 1983) (harms of

pornography documented)...................25, 34-35, 47-48, 73-74

Russel , D., “Pornography and Rape: A Causal Model, ” 9 Political

Psychology 41 (March, 1988) (evidence supports causal relation

between pornography and sexual abuse)...................................25

Reed v. Reed, 404 U. S. 71 (1971) (first case to find statute that

discriminated against women violated Fourteenth Amendment;

statute preferred men over women as estate administrators). . 12

Regents of the University of California v. Bakke, 438 U. S. 265

(1978) (serious equality ef orts in medical school admissions

labeled reverse discrimination) ...................................................61

Roe v. Wade, 410 U. S. 113 (1973) (abortion decriminalized as

privacy right) .........................................................................13-14

Stanley v. Georgia, 394 U. S. 557 (1969) (possession of obscenity

in the home protected by right to privacy)..........................14, 27

Zil man, D., Connections between Sex and Aggression (Hil sdale, New Jersey: Lawrence Erlbaum, 1984) (laboratory studies on

connection between sexually explicit materials and aggressive

attitudes and behaviors against women discussed) . . . . . . . . . . 25

98

Pornography and Civil Rights

Appendix A

AN ORDINANCE OF THE CITY OF MINNEAPOLIS

Amending Tide 7, Chapter 139 of the Minneapolis Code of

Ordinances relating to Civil Rights: In General.

The City Council of the City of Minneapolis do ordain as fol ows:

Section 1. That Section 139. 10 of the above-entitled ordinance be

amended to read as fol ows:

139. 10 Findings, declaration of policy and purpose.

(a) Findings. The council finds that discrimination in employment,

labor union membership, housing accommodations, property

rights, education, public accommodations and public services

based on race, color, creed, religion, ancestry, national origin, sex,

including sexual harassment AND PORNOGRAPHY, af ectional

preference, disability, age, marital status, or status with regard to

public assistance or in housing accommodations based on familial

status adversely af ects the health, welfare, peace and safety of the

community. Such discriminatory practices degrade individuals,

foster intolerance and hate, and create and intensify

unemployment, sub-standard housing, under-education, il health,

lawlessness and poverty, thereby injuring the public welfare.

m SPECIAL FINDINGS ON PORNOGRAPHY: THE

COUNCIL FINDS THAT PORNOGRAPHY IS CENTRAL

IN CREATING AND MAINTAINING THE CIVIL

INEQUALITY OF THE SEXES. PORNOGRAPHY IS A

SYSTEMATIC PRACTICE OF EXPLOITATION AND

SUBORDINATION BASED ON SEX WHICH

DIFFERENTIALLY HARMS WOMEN. THE BIGOTRY

AND CONTEMPT IT PROMOTES, WITH THE ACTS OF

AGGRESSION IT FOSTERS, HARM WOMEN’S

OPPORTUNITIES FOR EQUALITY OF RIGHTS IN

EMPLOYMENT, EDUCATION, PROPERTY RIGHTS,

PUBLIC ACCOMMODATIONS AND PUBLIC SERVICES;

CREATE PUBLIC HARASSMENT AND PRIVATE

DENIGRATION; PROMOTE INJURY AND

DEGRADATION SUCH AS RAPE, BATTERY AND

PROSTITUTION AND INHIBIT JUST ENFORCEMENT

OF LAWS AGAINST THESE ACTS; CONTRIBUTE

SIGNIFICANTLY TO RESTRICTING WOMEN FROM

FULL EXERCISE OF CITIZENSHIP AND

Appendix A: The Minneapolis Ordinance

99

PARTICIPATION IN PUBLIC LIFE, INCLUDING IN

NEIGHBORHOODS; DAMAGE RELATIONS BETWEEN

THE SEXES; AND UNDERMINE WOMEN’S EQUAL

EXERCISE OF RIGHTS TO SPEECH AND ACTION

GUARANTEED TO ALL CITIZENS UNDER THE

CONSTITUTIONS AND LAWS OF THE UNITED STATES

AND THE STATE OF MINNESOTA

(b) Declaration of policy and purpose. It is the public policy of the

City of Minneapolis and the purpose of this title:

(1) To recognize and declare that the opportunity to obtain

employment, labor union membership, housing

accommodations, property rights, education, public

accommodations and public services without discrimination

based on race, color, creed, religion, ancestry, national origin,

sex, including sexual harassment AND PORNOGRAPHY,

af ectional preference, disability, age, marital status, or status

with regard to public assistance or to obtain housing

accommodations without discrimination based on familial status

is a civil right;

(2) To prevent and prohibit al discriminatory practices based

on race, color, creed, religion, ancestry, national origin, sex,

including sexual harassment AND PORNOGRAPHY,

af ectional preference, disability, age, marital status, or status

with regard to public assistance with respect to employment,

labor union membership, housing accommodations, property

rights, education, public accommodations or public services;

(3) To prevent and prohibit al discriminatory practices based

on familial status with respect to housing accommodations;

(4) TO PREVENT AND PROHIBIT ALL

DISCRIMINATORY PRACTICES OF SEXUAL

SUBORDINATION OR INEQUALITY THROUGH

PORNOGRAPHY;

(5) To protect al persons from unfounded charges of

discriminatory practices;

(6) To eliminate existing and the development of any ghettos in

the community; and

(7) To ef ectuate the foregoing policy by means of public

information and education, mediation and conciliation, and

enforcement

Section 3. That Section 139. 20 of the above-entitled ordinance be

amended by adding thereto a new subsection (gg) to read as

100

Pornography and Civil Rights

fol ows:

(gg) Pornography. Pornography is a form of discrimination on the

basis of sex.

(1) Pornography is the sexually explicit subordination of

women, graphically depicted, whether in pictures or in words,

that also includes one or more of the fol owing:

(i) women are presented dehumanized as sexual objects,

things or commodities; or

(i ) women are presented as sexual objects who enjoy pain

or humiliation; or

(i i) women are presented as sexual objects who experience

sexual pleasure in being raped; or

(iv) women are presented as sexual objects tied up or cut up

or mutilated or bruised or physically hurt; or

(v) women are presented in postures of sexual submission;

or

(vi) women’s body parts - including but not limited to

vaginas, breasts, and buttocks - are exhibited, such that

women are reduced to those parts; or

(vi ) women are presented as whores by nature; or

(vi i) women are presented being penetrated by objects or

animals; or

(ix) women are presented in scenarios of degradation,

injury, abasement, torture, shown as filthy or inferior,

bleeding, bruised, or hurt in a context that makes these

conditions sexual.

(2) The use of men, children, or transsexuals in the place of

women in (1) (i-ix) above is pornography for purposes of

subsections (1) - (p) of this statute.

Section 4. That section 139. 40 of the above-mentioned ordinance

be amended by adding thereto new subsections (1), (m), (n), (o),

(p), (q), (r) and (s) to read as fol ows:

(1) Discrimination by trafficking in pornography. The production,

sale, exhibition, or distribution of pornography is discrimination

against women by means of trafficking in pornography:

(1) City, state, and federally funded public libraries or private

and public university and college libraries in which

pornography is available for study, including on open shelves,

shal not be construed to be traf icking in pornography but

Appendix A: The Minneapolis Ordinance

101

special display presentations of pornography in said places is

sex discrimination.

(2) The formation of private clubs or associations for purposes

of traf icking in pornography is il egal and shal be considered

a conspiracy to violate the civil rights of women.

(3) Any woman has a cause of action hereunder as a woman

acting against the subordination of women. Any man or

transsexual who al eges injury by pornography in the way

women are injured by it shal also have a cause of action.

(m) Coercion into pornographic performances. Any person,

including transsexual, who is coerced, intimidated, or fraudulently

induced (hereafter “coerced”) into performing for pornography

shal have a cause of action against the maker(s), sel er(s),

exhibitor(s) or distributor(s) of said pornography for damages and

for the elimination of the products of the performance^) from the

public view.

(1) Limitation of action. This claim shal not expire before five

years have elapsed from the date of the coerced performance(s)

or from the last appearance or sale of any product of the

performance(s), whichever date is later;

(2) Proof of one or more of the following facts or conditions

shal not, without more, negate a finding of coercion;

(i) that the person is a woman; or

(i ) that the person is or has been a prostitute; or

(i i) that the person has at ained the age of majority; or

(iv) that the person is connected by blood or marriage to

anyone involved in or related to the making of the

pornography; or

(v) that the person has previously had, or been thought to

have had, sexual relations with anyone, including anyone

involved in or related to the making of the pornography, or

(vi) that the person has previously posed for sexually

explicit pictures for or with anyone, including anyone

involved in or related to the making of the pornography at

issue; or

(vi ) that anyone else, including a spouse or other relative,

has given permission on the person’s behalf; or

(vi i) that the person actual y consented to a use of the

performance that is changed into pornography; or

102

Pornography and Civil Rights

(ix) that the person knew that the purpose of the acts or

events in question was to make pornography; or

(x) that the person showed no resistance or appeared to

cooperate actively in the photographic sessions or in the

sexual events that produced the pornography; or

(xi) that the person signed a contract, or made statements

affirming a willingness to cooperate in the production of

pornography; or

(xii) that no physical force, threats, or weapons were used in

the making of the pornography; or

(xiii) that the person was paid or otherwise compensated.

(n) Forcing pornography on a person. Any woman, man, child, or

transsexual who has pornography forced on him/her in any place

of employment, in education, in a home, or in any public place has

a cause of action against the perpetrator and/or institution.

(o) Assault or physical at ack due to pornography. Any woman,

man, child, or transsexual who is assaulted, physically at acked or

injured in a way that is directly caused by specific pornography

has a claim for damages against the perpetrator, the maker(s),

distributor(s), sel er(s), and/or exhibitor(s), and for an injunction

against the specific pornography’s further exhibition, distribution,

or sale. No damages shal be assessed (A) against maker(s) for

pornography made, (B) against distributor(s) for pornography

distributed, (C) against seller(s) for pornography sold, or (D)

against exhibitors for pornography exhibited prior to the

enforcement date of this act.

(p) Defenses. Where the materials which are the subject mat er of

a cause of action under subsections (1), (m), (n), or (o) of this

section are pornography, it shall not be a defense that the

defendants did not know or intend that the materials were

pornography or sex discrimination.

(q) Severability. Should any part(s) of this ordinance be found

legally invalid, the remaining part(s) remain valid.

(r) Subsections (1), (m), (n), and (o) of this section are exceptions to

the second clause of Section 141. 90 of this title.

(s) Ef ective date. Enforcement of this ordinance of December 30,

1983, shal be suspended until July 1, 1984 (“enforcement date”)

to facilitate training, education, voluntary compliance, and

implementation taking into consideration the opinions of the City

Attorney and the Civil Rights Commission. No liability shall at ach

under (1) or as specifically provided in the second sentence of (o)

Appendix A: The Minneapolis Ordinance

103

until the enforcement date. Liability under al other sections of this

act shal at ach as of December 30, 1983.

Amending Title 7, Chapter 141 of the Minneapolis Code of

Ordinances relating to Civil Rights: Administration and

Enforcement

The City Council of the City of Minneapolis do ordain as fol ows:

Section 1. That Section 141. 50 (1) of the above-entitled ordinance

be amended by adding thereto a new subsection (3) to read as

fol ows:

(3) Pornography: The hearing committee or court may order

relief, including the removal of violative material, permanent

injunction against the sale, exhibition or distribution of violative

material, or any other relief deemed just and equitable, including

reasonable at orney’s fees.

Section 2. That Section 141. 60 of the above-entitled ordinance be

amended as fol ows:

141. 60 Civil action, judicial review and enforcement

(a) Civil actions.

(1) AN INDIVIDUAL ALLEGING A VIOLATION OF

THIS ORDINANCE MAY BRING A CIVIL ACTION

DIRECTLY IN COURT.

(2) A complainant may bring a civil action at the following

times:

(i) Within forty-five (45) days after the director, a review

committee or a hearing committee has dismissed a

complaint for reasons other than a conciliation

agreement to which the complainant is a signator; or

(i ) After forty-five (45) days from the filing of a verified

complaint if a hearing has not been held pursuant to

Section 141. 50 or the department has not entered into a

conciliation agreement to which the complainant is a

signator. The complainant shal notify the department of

his/her intention to bring a civil action, which shal be

commenced within ninety (90) days of giving the notice.

A complainant bringing a civil action shal mail, by

registered or certified mail, a copy of the summons and

complaint to the department and upon receipt of same,

the director shal terminate al proceedings before the

department relating to the complaint and shal dismiss

the complaint

104

Pornography and Civil Rights

No complaint shal be filed or reinstituted with the department

after a civil action relating to the same unfair discriminatory

practice has been brought unless the civil action has been

dismissed without prejudice.

GOVT OPS - Your Committee, to whom was referred ordinances

amending Title 7 of the Minneapolis Code of Ordinances, to add

pornography as discrimination against women and provide just

and equitable relief upon finding of discrimination by hearing

committee of the Civil Rights Commission, and having held public

hearings thereon, recommends that the following ordinances be

given their second readings for amendment and passage:

a. Ordinance amending Chap 139 relating to Civil Rights: In

General;

b. Ordinance amending Chap 141 relating to Civil Rights:

Administration and Enforcement.

Appendix A: The Minneapolis Ordinance

105

Appendix B

CODE OF INDIANAPOLIS AND MARION COUNTY

INDIANA

Chapter 16

HUMAN RELATIONS; EQUAL OPPORTUNITY*

Sec. 16-1. Findings, policies and purposes.

(a) Findings. The city-county council hereby makes the

following findings:

(1) The council finds that the practice of denying equal

opportunities in employment, education, access to and use

of public accommodations, and acquisition of reed estate

based on race, color, religion, ancestry, national origin,

handicap, or sex is contrary to the principles of freedom

and equality of opportunity and is a burden to the

objectives of the policies contained herein and shal be

considered discriminatory practices.

(2^ Pornography is a discriminatory practice based on sex

which denies women equal opportunities in society.

Pornography is central in creating and maintaining sex as a

basis for discrimination. Pornography is a systematic

practice of exploitation and subordination based on sex

which differential y harms women. The bigotry and

contempt it promotes, with the acts of aggression it fosters,

harm women's opportunities for equality of rights in

employment education, access to and use of public

accommodations, and acquisition of real property: promote

rape, bat ery, child abuse, kidnapping and prostitution and

inhibit just enforcement of laws against such acts: and

contribute significantly to restricting women in particular

from ful exercise of citizenship and participation in public

life, including in neighborhoods.

(b) It is the purpose of this chapter to carry out the following

policies of the City of Indianapolis and Marion County:

(1) To provide equal employment opportunity in al city

and county jobs without regard to race, color, religion,

* This is the complete civil-rights law of the City of Indianapolis and Marion County.

Al language relating specifical y to pornography is underlined. Spelling has been corrected.

106

Pornography and Civil Rights

handicap, national origin, ancestry, age, sex, disabled

veteran, or Vietnam era veteran status;

(2) To encourage the hiring of the handicapped in both the

public and the private sectors and to provide equal access to

the handicapped to public accommodations;

(3) To utilize minority-owned businesses, securing goods

and services for the city and county in a dollar amount

equal to at least ten (10) per cent of monies spent by the

City of Indianapolis and Marion County;

(4) To utilize women-owned businesses and encourage the

utilization of women in construction and industry;

(5) To protect employers, labor organizations, employment

agencies, property owners, real estate brokers, builders,

lending institutions, governmental and educational agencies

and other persons from unfounded charges of

discrimination;

(6) To provide al citizens of the City of Indianapolis and

Marion County equal opportunity for education,

employment, access to public accommodations without

regard to race, religion, color, handicap, sex, national

origin, ancestry, age, or disabled veteran or Vietnam era

veteran status;

(7) To provide al citizens of the City of Indianapolis and

Marion County equal opportunity for acquisition through

purchase or rental of real property including, but not

limited to, housing without regard to race, sex, religion or

national origin; and

(8) To prevent and prohibit al discriminatory practices of

sexual subordination or inequality through pornography.

Sec. 16-2. Nondiscrimination clauses.

(1) Every contract to which one of the parties is the city or the

county, or any board, department or office of either the city or

county, including franchises granted to public utilities, shal

contain a provision requiring the governmental contractor and

subcontractors not to discriminate against any employee or

applicant for employment in the performance of the contract,

with respect to hire, tenure, terms, conditions or privileges of

employment, or any mat er directly or indirectly related to

employment, because of race, sex, religion, color, national

origin, ancestry, age, handicap, disabled veteran status and

Vietnam era veteran status. Breach of this provision may be

Appendix B: The Indianapolis Ordinance

107

regarded as a material breach of the contract

(2) Al applications, postings, announcements, and

advertisements recruiting applicants for employment with the

city or county shal conspicuously post in the bottom margin of

such recruiting bids a clause as fol ows: “An Af irmative Action

Equal Employment Opportunity Employer. ”

Sec. 16-3. Definitions.

As used in this chapter, the fol owing terms shal have the

meanings ascribed to them in this section:

(a) Acquisition of real estate shal mean the sale, rental, lease, sublease, construction or financing, including negotiations

and any other activities or procedures incident thereto, of:

(1) Any building, structure, apartment, single room or

suite of rooms or other portion of a building, occupied

as or designed or intended for occupancy as living

quarters by one or more families or single individuals;

(2) Any building, structure or portion thereof, or any

improved or unimproved land utilized or designed or

intended for utilization, for business, commercial,

industrial or agricultural purposes;

(3) Any vacant or unimproved land of ered for sale or

lease for any purpose whatsoever.

(b) Appointing authorities shal mean and include the mayor,

city-county council and such other person or agency as may

be entitled to appoint any member of the equal opportunity

advisory board created in this chapter.

(c) Appraiser shal mean any person who, for a fee or in

relation to his/her employment or usual occupation,

establishes a value for any kind of real estate, the acquisition

of which is defined in this section.

(d) Board shal mean the equal opportunity advisory board.

(e) Complainant shal mean any person who signs a

complaint on his/her own behalf alleging that he/she has

been aggrieved by a discriminatory practice.

(f) Complaint shal mean a writ en grievance filed with the

office of equal opportunity, either by a complainant or by

the board or of ice, which meets al the requirements of

sections 16-18 and 16- 19.

(g) Discriminatory practice shal mean and include the

fol owing:

108

Pornography and Civil Rights

(1) The exclusion from or failure or refusal to extend to

any person equal opportunities or any difference in the

treatment of any person by reason of race, sex, religion,

color, national origin or ancestry, handicap, age,

disabled veteran or Vietnam era veteran status.

(2) The exclusion from or failure or refusal to extend to

any person equal opportunities or any difference in the

treatment of any person, because the person filed a

complaint alleging a violation of this chapter, testified in

a hearing before any members of the board or otherwise

cooperated with the office or board in the performance

of its duties and functions under this chapter, or

requested assistance from the board in connection with

any alleged discriminatory practice, whether or not such

discriminatory practice was in violation of this chapter.

(3) In the case of a real estate broker or real estate

salesperson or agent, acting in such a capacity in the

ordinary course of his/her business or occupation, who

does any of the following:

a. Any attempt to prevent, dissuade or discourage

any prospective purchaser, lessee or tenant of real

estate from viewing, buying, leasing or renting the

real estate because of the race, sex, religion or

national origin of:

1. Students, pupils or faculty of any school or

school district;

2. Owners or occupants, or prospective owners or

occupants, of real estate in any neighborhood or

on any street or block; provided, however, this

clause shal not be construed to prohibit

disclosure in response to inquiry by any

prospective purchaser, lessee or tenant of:

(i) Information reasonably believed to be

accurate regarding such race, sex, religion or

national origin; or

(i ) The honest professional opinion or belief

of the broker, salesperson or agent regarding

factors which may af ect the value or

desirability of property available for purchase

or lease.

b. Any solicitation, promotion or attempt to influence

or induce any owner to sel , lease or list for sale or

Appendix B: The Indianapolis Ordinance

109

lease any real estate, which solicitation, promotion or

at empted inducement includes representations

concerning:

1. Race, sex, religion or national origin or

present, prospective or possible purchasers or

occupants of real estate in any area,

neighborhood or particular street or block;

2. Present, prospective or possible neighborhood

unrest, tension or change in the race, sex,

religion or national origin of occupants or

prospective occupants of real estate in any

neighborhood or any street or block;

3. Present, prospective or possible decline in

market value of any real estate by reason of the

present, prospective or possible entry into any

neighborhood, street or block of persons of a

particular race, sex, religion or national origin;

4. Present, prospective or possible decline in the

quality of education of ered in any school or

school district by reason of any change in the

race, sex, religion or national origin of the

students, pupils or faculty of such school or

district.

(4) Traf icking in pornography: The production, sale,

exhibition, or distribution of pornography

a. City, state, and federal y funded public libraries or

private and public university and college libraries in

which pornography is available for study, including

on open shelves, shal not be construed to be

traf icking in pornography, but special display

presentations of pornography in said places is sex

discrimination,

b. The formation of private clubs or associations for

purposes of traf icking in pornography is il egal and

shal be considered a conspiracy to violate the civil

rights of women.

c. This paragraph (4) shal not be construed to make

isolated passages or isolated parts actionable.

(5) Coercion into pornographic performance: Coercing,

intimidating or fraudulently inducing any person,

including a man, child or transsexual, into performing

Pornography and Civil Rights

for pornography, which injury may date from any

appearance or sale of any products of such performance.

a.

Proof of the following facts or conditions shal not

constitute a defense:

1. That the person is a woman: or

2. That the person is or has been a prostitute: or

3. That the person has at ained the age of

majority: or

4. That the person is connected by blood or

marriage to anyone involved in or related to the

making of the pornography: or

5. That the person has previously had, or been

thought to have had, sexual relations with

anyone, including anyone involved in or related

to the making of the pornography: or

6. That the person has previously posed for

sexually explicit pictures for or with anyone,

including anyone involved in or related to the

making of the pornography at issue: or

7. That anyone else, including a spouse or other

relative, has given permission on the person's

behalf: or

8. That the person actually consented to a use of

the performance that is changed into

pornography; or

9. That the person knew that the purpose of the

acts or events in question was to make

pornography; or

10. That the person demonstrated no resistance

or appeared to cooperate actively in the

photographic sessions or in the sexual events that

produced the pornography: or

11. That the person signed a contract, or made

statements affirming a willingness to cooperate in

the production of pornography: or

12. That no physical force, threats, or weapons

were used in the making of the pornography: or

13. That the person was paid or otherwise

compensated.

Appendix B: The Indianapolis Ordinance

111

(6) Forcing pornography on a person: The forcing of

pornography on any woman, man, child or transsexual

in any place of employment in education, in a home, or

in any public place.

(7) Assault or physical at ack dug to pornography;. The

assault, physical at ack, or injury of any woman, man,

child, or transsexual in a way that is directly caused by

specific pornography.

(8) Defenses: Where the materials which are the subject

mat er of a complaint under paragraphs (4). (5). or (7)

of this subsection (g^ are pornography, it shal not be a

defense that the respondent did not know or intend that

the materials were pornography or sex discrimination:

provided, however, that in the cases under paragraph

(g^4) of section 16-3 or against a sel er, exhibitor or

distributor under paragraph (g)(7) of section 16-3. no

damages or compensation for losses shal be recoverable

unless the complainant proves that the respondent knew

or had reason to know that the materials were

pornography. Provided, farther, that it shal be a

defense to a complaint under paragraph (g)(4) of section

16-3 that the materials complained of are those covered

only by paragraph (qW6^ of section 16-3.

(h) Education shal mean the construction, maintenance or

operation of any school or educational facility utilized or

intended to be utilized for the education or training of

persons residing within the territorial jurisdiction of the

office and controlled by a public governmental board or

agency which operates one or more elementary or

secondary schools.

(i) Employer shal mean:

(1) Any political subdivision within the county, not

represented by the corporation counsel, pursuant to IC

18-4-7-5, and any separate municipal corporation which

has territorial jurisdiction primarily within the county;

and

(2) Any person who employs at the time of any alleged

violation six (6) or more employees within the territorial

jurisdiction of the of ice.

(j) Employment shal mean a service performed by an

individual for compensation on behalf of an employer,

except that such services shal not include the fol owing:

Pornography and Civil Rights

(1) Services performed by an individual who in fact is

engaged in an independently established trade,

occupation, business or profession, and who has been

and wil continue to be free from direction or control

over the manner of performance of such services;

(2) Services performed by an agent who receives

compensation solely upon a commission basis and who

controls his/her own time and ef orts; or

(3) Services performed by an individual in the employ of

his/her spouse, child or parent

(k) Employment agency shal mean and include any person

undertaking, with or without compensation, to procure,

recruit, refer or place any individual for employment.

(1) Labor organization shal mean and include any

organization which exists for the purpose, in whole or in

part, of collective bargaining or dealing with employers

concerning grievances, terms or conditions of employment,

or for other mutual aid or protection in relation to

employment.

(m) Lending institution shal mean any bank, building and

loan association, insurance company or other corporation,

association, firm or enterprise, the business of which

consists in whole or in part in making or guaranteeing

loans, secured by real estate or any interest therein.

(n) Of ice shall mean the office of equal opportunity created by this chapter.

(o) Owner shal mean and include the title holder of record,

a contract purchaser, lessee, sublessee, managing agent or

other person having rights of ownership or possession, or

the right to sell, rent or lease real estate.

(p) Person shal mean and include one or more individuals,

partnerships, associations, organizations, cooperatives, legal

representatives, trustees, trustees in bankruptcy, receivers,

governmental agencies and other organized groups of

persons.

(q^ Pornography shal mean the graphic sexually explicit

subordination of women, whether in pictures or in words,

that also includes one or more of the following;

(I) Women are presented as sexual objects who enjoy

pain or humiliation; or

(2^ Women are presented as sexual objects who

Appendix B: The Indianapolis Ordinance

113

experience sexual pleasure in being raped: or

(3) Women are presented as sexual objects tied up or cut

up or mutilated or bruised or physical y hurt, or as

dismembered or truncated or fragmented or severed

into body parts: or

(4^ Women are presented being penetrated by objects or

animals: or

(5) Women are presented in scenarios of degradation,

injury, abasement, torture, shown as filthy or inferior,

bleeding, bruised, or hurt in a context that makes these

conditions sexual; [or]

(6^ Women are presented as sexual objects for

domination, conquest, violation, exploitation.

possession, or use, or through postures or positions of

servility or submission or display.

The use of men, children, or transsexuals in the place of

women in paragraphs (1) through (6) above shal also

constitute pornography under this section.

(r) Public accommodation shal mean an establishment which

caters to or of ers its services, facilities or goods to the

general public.

(s) Public facility shal mean any facility or establishment, other than an educational institution, which is owned,

operated or managed by or on behalf of a governmental

agency.

(t) Real estate broker shal mean any person who, for a fee or other valuable consideration, sel s, purchases, rents, leases

or exchanges, or negotiates or of ers or at empts to

negotiate the sale, purchase, rental, lease or exchange of

real property owned by another person; or a person who is

licensed and holds himself/herself out to be engaged in the

business of selling, purchasing, renting, leasing or

exchanging real property for other persons, or who

manages and col ects rents for the real property of another.

(u) Real estate salesperson or agent shal mean any person

employed by a real estate broker to perform or assist in

performing any or al of the functions of the real estate

broker.

(v) Respondent shal mean one or more persons against

whom a complaint is filed under this chapter, and who the

complaint alleges has commit ed or is committing a

Pornography and Civil Rights

discriminatory practice.

Sec. 16-4. Office of equal opportunity — Created; purpose.

There is hereby created a section of the legal division of the

department of administration entitled the office of equal

opportunity. This office and its board are empowered as provided

in this chapter to carry out the public policy of the state as stated

in section 2 of the Indiana Civil Rights Act, within the territorial

boundaries of Marion County.

Sec. 16-5. Same — Composition of office; functions.

The office shal be directed by a chief officer who shall also be the

affirmative action officer for the city and county. The chief officer

shal be appointed by and serve at the pleasure of the mayor and

shal be responsible for performing the following functions:

(1) To monitor internal employment practices as fol ows:

a. By ensuring that city and county government offers equal

employment opportunities to persons regardless of race,

religion, color, sex, national origin, ancestry, age, handicap,

or disabled veteran or Vietnam era veteran status;

b. By providing a vehicle through which employees may

seek redress for alleged discriminatory acts by city and

county government and/or retaliatory acts by city or county

government for filing or assisting in the discrimination

complaint process;

c. By establishing af irmative action, goals for city and

county government;

d. By complying with federal reporting requirements

concerning af irmative action and equal opportunity; and

e. By reviewing policies and procedures of the city and the

county to eliminate discriminatory practices.

(2) To monitor contract compliance as fol ows:

a. By ensuring compliance with federal grant requirements

respective to the utilization of minority business enterprises

(MBE) and women business enterprises (WBE);

b. By reviewing city-county contracts to assure compliance

with relevant federal, state and local laws and regulations on

af irmative action and equal employment;

c. By functioning as a liaison between the city-county and its

contractors by providing technical assistance in developing

af irmative action goals and monitoring these compliance

Appendix B: The Indianapolis Ordinance

115

ef orts to meet established goals; and

d.

By managing and implementing the MBE/WBE

programs, and by monitoring city and county purchasing as

specified in section 16-1(3).

(3) To receive, investigate and adjudicate community

complaints as specified in sections 16-18 through 16-28.

Section 16-6. Same — General powers and duties.

In addition to the functions previously mentioned in section 16-5,

the of ice shal have the fol owing powers and duties:

(1) To gather and distribute information for the purpose of

improving human relations and removing inequities to

protected groups in the areas of housing, recreation,

education, employment, law enforcement, vocational guidance

and related mat ers.

(2) To assist other governmental and private agencies, groups

and individuals in reducing community tensions and

preventing conflicts between persons of different racial, ethnic

and religious groups.

(3) To discourage persons from engaging in discriminatory

practices through informal methods of persuasion and

conciliation and through programs of public information and

education.

(4) To furnish technical assistance upon request to persons to

assist them in eliminating discriminatory practices or otherwise

implementing the policy and purposes of the Indiana Civil

Rights Act

(5) To make such general investigations, studies and surveys as

the office shal deem necessary for the performance of its duties.

(6) To prepare and submit at least annual y a report of its

activities to the mayor and to the public, which report shal

describe the investigations and proceedings conducted by the

of ice, the outcome thereof and the progress and the

achievements of the office and the community toward

elimination of discriminatory practices.

(7) To cooperate with the Indiana State Civil Rights

Commission, any appropriate federal, state or local agencies,

and with private organizations, individuals and neighborhood

associations in order to effectuate the purposes of this chapter

and to further compliance with federal, state and local laws and

ordinances prohibiting discriminatory practices.

116

Pornography and Civil Rights

(8) To perform any other duties assigned by ordinance or the

mayor.

Sec. 16-7. Equal opportunity advisory board — Created;

purpose.

There is hereby created an equal opportunity advisory board

empowered as provided in this chapter to carry out the public

policy of the state as stated in section 2 of the Indiana Civil

Rights Act, within the territorial boundaries of Marion County.

Sec. 16-8. Same — Composition of board; appointment and

terms of members.

(1) The board shall consist of twenty-two (22) members.

Fourteen (14) members shall be appointed by the mayor and

eight (8) members shal be appointed by the city-county

council. In addition, the chief officer shal be an ex officio

member of the board. In making appointments, the mayor and

the city-county council shal consider the fol owing:

(a) No more than seven (7) members of the board

appointed by the mayor shall be from any one political

party. No more than four (4) members of the board

appointed by the city-county council shal be from any one

political party.

(b) In making appointments to the board, the mayor and

the city-county council shal take into consideration al

interests in the community, including but not limited to age,

racial, ethnic, sexual, religious and economic groups,

business, labor, the handicapped and the general public.

(2) A board member may be removed for just cause, including

nonattendance, by a two-thirds (2/3) vote of the board.

(3) In the event of the death, resignation or removal of any

member of the board prior to the expiration of his/her term,

the appointing authority shal make an appointment to fil the

vacancy for the unexpired term of the member.

(4) In making the original appointments to the board, the

mayor shall designate five (5) appointees to serve three-year

terms; five (5) appointees to serve two-year terms and four (4)

appointees to serve one-year terms; and the city-county council

shal designate three (3) appointees to serve three-year terms;

three (3) appointees to serve two-year terms and two (2)

appointees to serve one-year terms. Subsequent appointments

shal be for three-year terms beginning on the first day of

January and ending three (3) years later on the last day of

Appendix B: The Indianapolis Ordinance

117

December. Any member of the board whose term has expired

may continue in of ice until a successor has been appointed.

(5) The mayor shal appoint from the membership of the

board, a chairperson who shal serve a one-year term and until

his/her successor is appointed and qualified, but serves at the

pleasure of the mayor.

(6) The chairperson shal appoint a vice-chairperson and a

secretary to serve during his/her term of of ice.

Sec. 16-9. Same — Meetings; vote required for board action.

The board shal hold regular meetings every two (2) months on a

day agreed upon by the board. The board shal hold special

meetings as may be cal ed by two-thirds (2/3) of the membership.

One-half (1/2) of the members of the board, excluding vacancies,

shal constitute a quorum at any meeting. A majority vote of those

in attendance shal be necessary for action, except in the case of a

determination after hearing provided in section 16-26, when a

majority of the members of the board not disqualified from

participation in such determination shal be required. The chief

of icer shal not be al owed to vote, except in case of a tie, when the

chief of icer may cast the deciding vote.

Sec. 16-10. Same — General powers and duties.

The board shal have the fol owing powers and duties:

(1) To appoint an executive commit ee, a majority of which

shal constitute a quorum, which committee shal be authorized

to act upon emergency mat ers between meetings of the board;

provided, however, the executive committee shal not take any

action inconsistent with action previously taken or policies

adopted by the board, and the executive committee shal not

exercise any of the powers or functions of the board under

sections 16-17 through 16-27. Al of icers of any executive

committee appointed by the board must be members of the

board.

(2) To establish three (3) standing commit ees, composed of

seven (7) board members each, to deal with the following

subject mat er:

a. Internal employment practices,

b. Contract compliance,

c. Complaint adjudication.

The chairperson shal appoint the board members to each

committee. No board member shal serve on more than one

118

Pornography and Civil Rights

committee. The chairperson shal be an ex officio member of each

committee but have voting privileges only in case of a tie, when

he/she may cast the deciding vote. The board may establish any

additional committees as in its judgment wil aid the board in

effectuating the purposes of this chapter.

(3) To advise the office in formulating policies designed to

effectuate the purposes of this chapter and to make such

recommendations to the mayor and the city-county council as

the board shal deem appropriate to implement such policies.

(4) To adopt, amend and rescind procedural and substantive

rules and regulations for the conduct of its af airs, not

inconsistent with the provisions or intent and purposes of this

chapter, as the board shal deem necessary or appropriate. The

rules or regulations shal be adopted only after notice is given

and a hearing is held thereon in the manner provided by state

law relating to rule-making by state agencies. Any rule or

regulation adopted by the board shal be submitted to the

corporation counsel for approval as to legality. Upon approval

by the corporation counsel, the board shal cause the rule or

regulation to be printed or duplicated m such a manner as to

be readily available to interested persons and the public, and

shall thereupon file the original approved copy and one

duplicate with the clerk and the clerk of any other city or town

which has adopted this chapter. The rule or regulation shall be

effective as of the date and time of filing the original approved

copy with the clerk.

(5) To exercise shal additional powers or functions as may be

delegated to the board by ordinance or by executive order

validly adopted and promulgated by the mayor of the

consolidated city.

(6) To generally advise the office in the area of equal

opportunity which shal include but not be limited to

recommending new programs and program objectives,

reviewing problem areas and recommending changes in

existing programs.

Sec. 16-11. Same — Internal employment practices committee;

duties.

(1) A committee on internal employment practices is hereby

established. The committee shall be composed of seven (7)

members of the board appointed by the chairperson of the

board. The committee shal meet quarterly and at such other

times as its members deem necessary. The committee shall have

Appendix B: The Indianapolis Ordinance

119

the power to establish and adopt rules for the conduct of its

af airs.

(2) The duties of the internal employment practices committee

shal include:

(a) To review employment policies and procedures of the

city and county and make recommendations to eliminate

discriminatory employment practices.

(b) To review internal employment programs in the area of

equal employment opportunity and af irmative action and

make recommendations concerning their effective and

efficient operation.

(c) To provide recommendations for establishing and

achieving af irmative action goals.

Sec. 16-12. Same — Contract compliance committee; duties.

(1) A committee on contract compliance is hereby established.

The committee shal be composed of seven (7) members of the

board. The committee shal meet quarterly and at such other

times as the members of the committee shal deem necessary.

The committee shal have the power to establish and adopt

rules for the conduct of its af airs.

(2) The duties of the contract compliance committee shal

include:

(a) To review contract compliance procedures and make

recommendations concerning their effective and efficient

operation.

(b) To make recommendations for improving the utilization

of minority and women businesses by the city and county.

Sec. 16-13. Complaint adjudication; territorial application.

This chapter shal apply within the territorial limits of the

consolidated city and within the territorial limits of the county;

with respect to any discriminatory practice occurring within such

territorial limits and which relates to:

(1) Acquisition of real estate; or

(2) Employment; or

(3) Education controlled by any public board or agency; or

(4) Public accommodations; or

(51 Pornography

120

Pornography and Civil Rights

Sec. 16-14. Unlawful acts other than discriminatory practices;

penalty.

(a) It shal be unlawful for any person to discharge, expel or

otherwise discriminate against any other person because that

person:

(1) Has filed a complaint alleging a violation of section

16-15;

(2) Has testified in a hearing before the board or any

committee thereof;

(3) Has otherwise cooperated with the board or office in the

performance of their duties and functions;

(4) Has requested assistance from the board or office in

connection with any alleged discriminatory practice,

whether or not the discriminatory practice was in violation

of section 16-15.

(b) It shal be unlawful for any person willfully to file a

complaint alleging a violation of section 16-15 with knowledge

that the complaint is false in any material respect

(c) Any person who violates any of the provisions of this section

shal , upon conviction, be subject to fine in an amount not less

than ten dollars ($10. 00) nor more than three hundred dollars

($300. 00); provided, however, no such fine shal be imposed

upon any person against whom the board or office has

proceedings under this chapter with respect to any violation of

subsection (a), which violation is also a discriminatory practice.

Any proceeding to impose a penalty under this section shall be

commenced within six (6) months after the date the violation

occurred.

Sec. 16-15. Discriminatory practices declared unlawful.

Each discriminatory practice as defined in section 16-3 shall be

considered unlawful unless it is specifically exempted by this

chapter.

Sec. 16-16. Persons and activities to which sections 16-14 and

16-15 do not apply.

(a) Sections 16-14 and 16-15 shal not apply to employment

performed for the consolidated city and department or agency

thereof, or any employment performed for the county or

agency thereof which is represented by the corporation counsel

pursuant to IC 18-4-7-5.

(b) Subject to the provisions of section 16-3(gW4). the

Appendix B: The Indianapolis Ordinance

121

provisions of sections 16-14 and 16-15 shal not include any

not-for-profit corporation or association organized exclusively

for fraternal or religious purposes, nor any school, education,

charitable or religious institution owned or conducted by, or

af iliated with, a church or religious institution, nor any

exclusively social club, corporation or association that is not

organized for profit and is not in fact open to the general

public.

(c) Sections 16-14 and 16-15 shal not apply to the rental of

rooms in a boardinghouse or rooming house or single-family

residential unit; provided, however, the owner of the building

unit actual y maintains and occupies a unit or room in the

building as his/her residence and, at the time of the rental the

owner intends to continue to so occupy the unit or room

therein for an indefinite period subsequent to the rental.

(d) The following shal not be discrimination on the basis of sex:

(1) For any person to maintain separate restrooms or

dressing rooms for the exclusive use of either sex;

(2) For an employer to hire and employ employees; for an

employment agency to classify or refer for employment any

individual; for a labor organization to classify its

membership or to classify or refer for employment any

individual; or for an employer, labor organization or joint

labor-management commit ee, controlling apprenticeship

or other training or retraining programs, to admit or

employ any individual in any such program; on the basis of

sex in those certain instances where sex is a bona fide

occupational qualification reasonably necessary to the

normal operation of that particular business or enterprise.

Sec. 16-17. Grounds for complaint; persons who may file;

persons against whom complaint may be made.

(a) A complaint charging that any person has engaged in or is

engaging in a discriminatory practice prohibited by sections

16-14 and/or 16-15 may be filed with the of ice by any person

claiming to be aggrieved by the practice, or by one or more

members of the board of employees of the office who have

reasonable cause to believe that a violation of sections 16-14

and 16-15 has occurred, in any of the following circumstances:

(1) In the case of the acquisition of real estate, against the

owner of the real estate, a real estate broker, real estate

salesperson or agent, or a lending institution or appraiser;

(2) In the case of education, against the governing board of

122

Pornography and Civil Rights

any public school district which operates schools within the

territorial limits of the consolidated city or of the county;

(3) In the case of a public accommodation, against the

owner or person in charge of any such establishment, or

both;

(4) In the case of a public facility, against the governmental

body which operates or has jurisdiction over the facility;

(5) In the case of employment, against any employer,

employment agency or labor organization;

(5) In the cares of trafficking ia pornography, coercion into

pornographic performances, and assault or physical at ack

due to pornography (as provided in section 16-3(f i(7^

against the perpetrator(s). maker (s). sel er(s). exhibitor(s).

or distributor^),

(7) In the case of forcing pornography on a person, against

the perpetrator(s) and/or institution.

(b) In the case of traf icking in pornography, any woman may

file a complaint as a woman acting against the subordination of

women and any man, child, or transsexual may file a complaint

but must prove injury in the same way that a woman is injured

in order to obtain relief under this chapter

(c^ In the case of assault or physical at ack due to pornography,

compensation for losses or an award of damages shal not be

assessed against:

Maker(s) for pornography made.

(2^ Distributor^. for pornography distributed.

(3) Sel er^, for pornography sold, or

(4) Exhibitor(s) for pornography exhibited, prior to the

effective date of this act.

Sec. 16-18. Contents of complaint.

To be acceptable by the office, a complaint shal be suf iciently

complete so as to reflect properly the ful name and address of the

complainant or other aggrieved person or persons; the ful name

and address of the person against whom the complaint is made;

the alleged discriminatory practice and a statement of particulars

thereof; the date or dates of the alleged discriminatory practice; if

the alleged discriminatory practice is of a continuing nature, the

dates between which the continuing discriminatory practices are

alleged to have occurred; a statement as to any other action, civil

or criminal, instituted before any other administrative agency,

Appendix B: The Indianapolis Ordinance

123

commission, department or court, whether state or federal, based

upon the same grievance al eged in the complaint, with a

statement as to the status or disposition of any such other action;

and in the case of alleged employment discrimination a statement

that the employer employs six (6) or more employees in the

territorial jurisdiction of the of ice.

Sec. 16-19. Execution and verification of complaint.

The original complaint shal be signed and verified before a notary

public or other person duly authorized by law to administer oaths

and take acknowledgements. Notarial services shal be furnished

by the office without charge.

Sec. 16-20. Timeliness of complaint.

No complaint shal be valid unless filed within ninety (90) calendar

days from the date of occurrence of the alleged discriminatory

practice or, in the case of a continuing discriminatory practice,

during the time of the occurrence of the al eged practice; but not

more than ninety (90) calendar days from the date of the most

recent alleged discriminatory act

Sec. 16-21. Referral of complaint to Indiana State Civil Rights

Commission.

The chief of icer may, in his/her discretion, prior to scheduling of

the complaint for hearing under section 16-26, refer any

complaint to the Indiana State Civil Rights Commission for

proceedings in accordance with the Indiana Civil Rights Act.

Sec. 16-22. Receipt of complaint from Indiana State Civil

Rights Commission.

The office is hereby authorized to receive any complaint referred

to it by the Indiana State Civil Rights Commission pursuant to

section 1 la of the Indiana State Civil Rights Act, and to take such

action with respect to any such complaint as is authorized or

required in the case of a complaint filed under section 16-17.

Sec. 16-23. Service of complaint on respondent; answer.

The chief of icer shal cause a copy of the complaint to be served

by certified mail upon the respondent, who may file a written

response to the complaint at any time prior to the close of

proceedings with respect thereto, except as otherwise provided in

section 16-26. The complaint and any response received shal not

be made public by the chief of icer, the board or any member

thereof or any agent or employee of the of ice, unless and until a

public hearing is scheduled thereon as provided in section 16-26.

124

Pornography and Civil Rights

Sec. 16-24. Investigation and conciliation.

(1) Investigation. Within ten (10) working days after the receipt of a complaint filed pursuant to this chapter, the chief officer

shal initiate an investigation of the alleged discriminatory

practice charged in the complaint. Al such investigations shall

be made by the office at the direction of the chief officer and

may include informal conferences or discussions with any party

to the complaint for the purpose of obtaining additional

information or attempting to resolve or eliminate the alleged

discriminatory practice by conciliation or persuasion. The

office shal have the authority to initiate discovery, including

but not limited to interrogatories, request for production of

documents and subpoenas, on approval of the chief of icer at

any time within ten (10) working days after filing of a

complaint. Any request by the office to compel discovery may

be by appropriate petition to the Marion County circuit or

superior courts.

(2) Report of investigation; determination by panel. Unless the complaint has been satisfactorily resolved prior thereto, the

chief officer shal , within thirty (30) working days after the date

of filing of a complaint pursuant to section 16-17, report the

results of the investigation made pursuant to subsection (1) to a

panel of three (3) members of the board designated by the

chairperson or vice-chairperson or pursuant to the rules of the

board, which panel shall not include any member of the board

who initiated the complaint, who might have participated in

the investigation of the complaint, or who is a member of the

complaint adjudication committee. The chief officer shal make

a recommendation as to whether there is reasonable cause to

believe that the respondent has violated sections 16-14 and/or

16-15. The chairperson, vice-chairperson or such other

member of the panel so designated may, for good cause shown,

extend the time for making such report Such extension

thereof shall be evidenced in writing, and the office shal serve

a copy of the extension on both the complainant and the

respondent The panel shal then determine by majority vote

whether reasonable cause exists to believe that any respondent

has violated sections 16-14 and/or 16-15. In making such a

determination, the panel shal consider only the complaint, the

response, if any, and the chief officer’s report; provided,

however, the panel may request the chief officer to make a

supplemental investigation and report with respect to any

mat er which it deems material to such determination.

Appendix B: The Indianapolis Ordinance

125

(3) Action when violation found. If the panel, pursuant to

subsection (2) determines that reasonable cause exists to believe

that any respondent has violated sections 16-14 and/or 16-15, it

may direct the chief of icer to endeavor to eliminate the alleged

discriminatory practice through a conciliation conference. At

least one panel member shal be present at any conciliation

conference at which both the complainant and respondent are

present or represented. If the complaint is satisfactorily

resolved through conciliation, the terms of any agreement

reached or undertaking given by any party shal be reduced to

writing and signed by the complainant, respondent and the

chief of icer. Any disagreement between the respondent and

the chief of icer in regard to the terms or conditions of a

proposed conciliation agreement may be referred to the panel

which considered the complaint, and the decision of the panel

with respect to such terms or conditions shal be final for

purposes of conciliation proceedings under this subsection, but

shal not be binding upon the respondent without his writ en

consent thereto. No action taken or statement made in

connection with any proceedings under this subsection, and no

writ en conciliation agreement or any of the terms thereof,

shal be made public by the board or any member thereof, or

any agent or employee of the of icer, without the writ en

consent of the parties, nor shal any such action, statement or

agreement be admissible in evidence in any subsequent

proceedings; provided, however, the board or of icer may

institute legal proceedings under this chapter for enforcement

of any writ en agreement or undertaking executed in

accordance with this subsection.

Sec. 16-25. Complaint adjudication committee; duties.

A complaint adjudication committee is hereby established. The

committee shal be composed of seven (7) members of the board.

The committee shal meet for the purpose of holding public

hearings on citizen’s complaints, which shal be at such times as its

members deem necessary.

Sec. 16-26. Hearings, findings and recommendations when

conciliation not effected.

(a) Hearing to be held; notice. If a complaint filed pursuant to this article has not been satisfactorily resolved within a reasonable

time through informal proceedings pursuant to section 16-24,

or if the panel investigating the complaint determines that a

conciliation conference is inappropriate under the

circumstances surrounding the complaint, the complaint

126

Pornography and Civil Rights

adjudication committee may hold a public hearing thereon

upon not less than ten (10) working days* writ en notice to the

complainant or other aggrieved person, and to the respondent.

If the respondent has not previously filed a written response to

the complaint, he/she may file such response and serve a copy

thereof upon the complainant and the office not later than five

(5) working days prior to the date of the hearing.

(b) Powers; rights of parties at hearing. In connection with a hearing held pursuant to subsection (a), the complaint

adjudication committee shall have power, upon any mat er

pertinent to the complaint or response thereto, to subpoena

witnesses and compel their at endance; to require the

production of pertinent books, papers or other documents;

and to administer oaths. The complainant shal have the right

to be represented by the chief officer or any attorney of his/her

choice. The respondent shall have the right to be represented

by an attorney or any other person of his/her choice. The

complainant and respondent shall have the right to appear in

person at the hearing, to be represented by an attorney or any

other person, to subpoena and compel the attendance of

witnesses, and to examine and cross-examine witnesses. The

complaint adjudication committee may adopt appropriate rules

for the issuance of subpoenas and the conduct of hearings

under this section. The complaint adjudication committee and

the board shall have the power to enforce discovery and

subpoenas by appropriate petition to the Marion County

circuit or superior courts.

(c) Statement of evidence; exceptions; arguments. Within thirty (30) working days from the close of the hearing, the complaint

adjudication committee shall prepare a report containing

written recommended findings of fact and conclusions and file

such report with the of ice. A copy of the report shal be

furnished to the complainant and respondent, each of whom

shal have an opportunity to submit written exceptions within

such time as the rules of the complaint adjudication committee

shal permit The complaint adjudication committee may, in its

discretion, upon notice to each interested party hear further

evidence or argument upon the issues presented by the report

and exceptions, if any.

(d) Findings of fact; sustaining or dismissing complaint. If, upon the preponderance of the evidence, the committee shal be of

the opinion that any respondent has engaged or is engaging in

a discriminatory practice in violation of the chapter, it shal

Appendix B: The Indianapolis Ordinance

127

state its findings of fact and conclusions and serve a copy

thereof upon the complainant and the respondent. In addition,

the committee may cause to be served on the respondent an

order requiring the respondent to cease and desist from the

unlawful discriminatory practice and requiring such person to

take further af irmative action as wil ef ectuate the purposes of

this chapter, including but not limited to the power to restore

complainant’s losses incurred as a result of discriminatory

treatment, as the committee may deem necessary to assure

justice; to require the posting of notice setting forth the public

policy of Marion County concerning equal opportunity and

respondent’s compliance with said policy in places of public

accommodations; to require proof of compliance to be filed by

respondent at periodic intervals; to require a person who has

been found to be in violation of this chapter and who is

licensed by a city or county agency authorized to grant a

license, to show cause to the licensing agency why his license

should not be revoked or suspended. If, upon the

preponderance of the evidence, the committee shal be of the

opinion that any respondent has not engaged in a

discriminatory practice in violation of this chapter it shal state

its findings of fact and conclusions and serve a copy thereof

upon the complainant and the respondent, and dismiss the

complaint Findings and conclusions made by the committee

shal be based solely upon the record of the evidence presented

at the hearing.

(e) Appeal to the board. within thirty (30) working days after the issuance of findings and conclusions by the committee, either

the complainant or the respondent may file a written appeal of

the decision of the committee to the board; however, in the

event that the committee requires the respondent to correct or

eliminate a discriminatory practice within a time period less

than thirty (30) working days, then that respondent must file

his/her appeal within that time period. After considering the

record of the evidence presented at the hearing and the

findings and conclusions of the committee, the board may

af irm the decision of the committee and adopt the findings

and conclusions of the committee, or it may af irm the decision

of the committee and make supplemental findings and

conclusions of its own, or it may reverse the decision of the

committee and make findings of fact and conclusions to

support its decision. The board may also adopt, modify or

reverse any relief ordered by the committee. The board must

take any of the above actions within thirty (30) working days

128

Pornography and Civil Rights

after the appeal is filed.

(f) Members of Board who are ineligible to participate. No member of the board who initiated a complaint under this chapter or

who participated in the investigation thereof shal participate in

any hearing or determination under this section as a member

of either a hearing panel, the complaint adjudication

committee or of the board.

(g) Applicability of state law; judicial review. Except as otherwise specifically provided in this section or in rules adopted by the

board or the complaint adjudication committee under this

chapter, the applicable provisions of the Administrative

Adjudication Act, IC 4-22-l> shal govern the conduct of

hearings and determinations under this section, and findings of

the board hereunder shal be subject to judicial review as

provided in that act

Sec. 16-27. Court Enforcement.

(a) Institution of action. In any case where the board or the committee has found that a respondent has engaged in or is

engaging in a discriminatory practice in violation of sections

16-14 and/or 16-15, and such respondent has failed to correct

or eliminate such discriminatory practice within the time limit

prescribed by the board or the committee and the time limit

for appeal to the board has elapsed, the board may file in its

own name in the Marion County circuit or superior courts a

complaint against the respondent for the enforcement of

section 16-26. Such complaint may request such temporary or

permanent injunctive relief as may be appropriate and such

additional af irmative relief or orders as wil effectuate the

purposes of this chapter and as may be equitable, within the

powers and jurisdiction of the court.

(b) Record of hearing; evidentiary value. In any action filed pursuant to this section, the board may file with the court a

record of the hearing held by the complaint adjudication

committee pursuant to section 16-26, which record shal be

certified by the secretary of the board as a true, correct and

complete record of the proceedings upon which the findings of

the complaint adjudication committee and/or the board were

based. The court may, in its discretion, admit any evidence

contained in the record as evidence in the action filed under

subsection (a), to the extent such evidence would be admissible

in court under the rules of evidence if the witness or witnesses

were present in court, without limitation upon the right of any

party to offer such additional evidence as may be pertinent to

Appendix B: The Indianapolis Ordinance

129

the issues and as the court shal , in its discretion, permit

(c) Temporary judicial relief upon filing of complaint. Upon the filing of a complaint pursuant to section 16-17 by a person

claiming to be aggrieved, the chief of icer, in the name of the

board and in accordance with such procedures as the board

shal establish by rule, may seek temporary orders for

injunctions in the Marion County circuit or superior courts to

prevent irreparable harm to the complainant, pending

resolution of the complaint by the of ice, complaint

adjudication committee and the board.

(d) Enforcement of conciliating agreements. If the board

determines that any party to a conciliation agreement

approved by the chief of icer under section 16-24 has failed or

refused to comply with the terms of the agreement, it may file a

complaint in the name of the board in the Marion County

circuit or superior courts seeking an appropriate decree for the

enforcement of the agreement

(e) Trial de novo upon finding of sex discrimination related to

pornography. In complaints involving discrimination through

pornography, judicial review shall be de novo.

Notwithstanding any other provision to the contrary, whenever

the board or committee has found that a respondent has

engaged in or is engaging in one of the discriminatory

practices set forth in paragraph (g)(4) of section 16-3 or as

against a sel er, exhibitor or distributor under paragraph (g)(7)

of section 16-3. the board shal , within ten (10) days after

making such finding, file in its own name in the Marion County

circuit or superior court an action for declaratory and/or

injunctive relief. The board shal have the burden of proving

that the actions of the respondent were in violation of this

chapter.

Provided, however, that in any complaint under paragraph

(g)(4) of section 16-3 or against a sel er, exhibitor or distributor

under paragraph (g)(7) of section 16-3 no temporary or

permanent injunction shal issue prior to a final judicial

determination that said activities of respondent do constitute a

discriminatory practice under this chapter.

Provided further. that no temporary or permanent injunction

under paragraph (g)(4) of section 16-3 or against a sel er,

exhibitor or distributor under paragraph (g)(7) of section 16-3

shal extend beyond such material(s) that, having been

described with reasonable specificity by the injunction, have

been determined to be validly proscribed under the chapter.

130

Pornography and Civil Rights

Sec. 16-28. Other remedies.

Nothing in this chapter shal affect any person’s right to pursue

any and al rights and remedies available in any other local, state

or federal forum.

INDIANAPOLIS CITY-COUNTY COUNCIL

GENERAL ORDINANCE NO. 35, 1984,

SECTION 7 & SECTION 8*

SECTION 7. (a) Because this ordinance amends certain provisions

adopted in General Ordinance No. 24. 1984. the effective date of

that ordinance is postponed until the effective date of this

ordinance, (b) The expressed or implied repeal or amendment, by

General Ordinance No. 24. 1984. or by this ordinance, of any

other ordinance or part of any other ordinance does not effect any

rights or liabilities accrued, penalties incurred, or proceedings

begun prior to the effective date of this ordinance. Those rights,

liabilities, and proceedings are continued, and penalties shal be

imposed and enforced under the repealed or amended ordinance

as if this ordinance or General Ordinance No. 24. 1984. had not

been adopted, (c) An offense, committed before the effective date

of this ordinance, under any ordinance expressly or impliedly

repealed or amended by this ordinance shal be prosecuted and

remains punishable under the repealed or amended ordinance as

if this ordinance had not been adopted.

SECTION 8. Should any provision (section, paragraph, sentence,

clause, or any other portion) of this ordinance be declared by a

court of competent jurisdiction to be invalid for any reason, the

remaining provisions shal not be af ected unless such remaining

provisions clearly cannot, without the invalid provision or

provisions, be given the effect intended by the council in adopting

this ordinance. It is further declared to be the intent of the

City-County Council that the ordinance be upheld as applied to

the graphic depiction of actual sexual subordination whether or

not upheld as applied to material produced without the

participation of human subjects nor shal a judicial declaration that

* These sections were not included in the codification of Indianapolis City-County General Ordinance No. 35, 1984 in the Code of Indianapolis and Marion County,

Indiana, Chapter 16. It is a policy of the Indianapolis City-County Council not to codify sections of ordinances regarding effective dates and severability. [Footnote in original. ]

Appendix B: The Indianapolis Ordinance

131

any provision (section, paragraph, sentence, clause or any other

portion) of this ordinance cannot validly be applied in a particular

manner or to a particular case or category of cases af ect the

validity of that provision (section, paragraph, sentence, clause or

any other portion) as applied in other ways or to other categories

of cases unless such remaining application would clearly frustrate

the Council’s intent in adopting this ordinance. To this end, the

provisions of this ordinance arc severable.

132

Pornography and Civil Rights

Appendix C

CITY OF CAMBRIDGE

In the Year One Thousand, Nine Hundred 85

AN ORDINANCE

In amendment to an ordinance formerly entitled “the General

Ordinances of the City of Cambridge” as revised in 1972 and now

designated as “The Code of the City of Cambridge. ”

Be it ordained by the City Council of the City of Cambridge as

fol ows:

Inasmuch, as pornography, a systematic practice of exploitation

and subordination based on sex which differentially harms women,

exists in the City of Cambridge, posing a substantial threat to the

health, safety, welfare and equality of citizens in the community,

and existing state and federal laws are inadequate to solve these

problems;

There shall be enacted amendments to the Human Rights Code,

Revised Ordinance No. 1016 (Aug. 23, 1984), in recognition that

pornography: promotes bigotry and contempt and fosters acts of

aggression, which diminish opportunities for equality of rights in

employment, education, property, public accommodations and

public services; creates public and private harassment, persecution

and denigration; promotes injury and degradation such as rape,

bat ery, sexual abuse of children, and prostitution and inhibits just

enforcement of laws against these acts; contributes significantly to

restricting women in particular from full exercise of citizenship

and participation in public life, including in neighborhoods;

damages relations between the sexes; and undermines women’s

equal exercise of rights to speech and action guaranteed to al

citizens under the Constitutions and laws of the United States, the

State of Massachuset s, and the City of Cambridge.

The Code of the City of Cambridge is hereby amended by adding

to Chapter 25, “Human Rights, ” the following amendments

entitled ‘Anti-Pornography Amendments. ’

Appendix C: The Cambridge Ordinance

133

CHAPTER 25

HUMAN RIGHTS

ANTI-PORNOGRAPHY AMENDMENTS

A BILL TO AMEND CHAPTER 25, “HUMAN RIGHTS, ”

OF THE CITY OF CAMBRIDGE BY ADDING

PORNOGRAPHY

AS SEX DISCRIMINATION

Section 1: DEFINITION: §E of Chapter 25, “Human Rights, ”

shal be amended to add:

(15)(a) Pornography is the graphic sexually explicit

subordination of women through pictures and/or words that

also includes one or more of the fol owing: (i) women are

presented dehumanized as sexual objects, things or

commodities; or (i ) women are presented as sexual objects who

enjoy pain or humiliation; or (i i) women are presented as

sexual objects who experience sexual pleasure in being raped;

or (iv) women are presented as sexual objects tied up or cut up

or mutilated or bruised or physical y hurt; or (v) women are

presented in postures of sexual submission, servility, or display;

or (vi) women’s body parts - including but not limited to

vaginas, breasts, or but ocks - are exhibited such that women

are reduced to those parts; or (vi ) women are presented as

whores by nature; or (vi i) women are presented as being

penetrated by objects or animals; or (ix) women are presented

in scenarios of degradation, injury, torture, shown as filthy or

inferior, bleeding, bruised or hurt in a context that makes these

conditions sexual.

(b) The use of men, children, or transsexuals in the place of

women in (a) above is also pornography for purposes of this

ordinance.

Section 2: HARMFUL ACTS; §8A of Chapter 25, “Human

Rights, ” shal be amended to add:

(18. ) It shal be sex discrimination through pornography to

engage in any of the following activities:

a.

Coercion into pornography: To coerce, intimidate, or

fraudulently induce (hereafter, “coerce”) any person, including

transsexual, into performing for pornography, which injury

may date from any appearance or sale of any product(s) of such

performance(s). Complaint(s) may be made against the

maker(s), sel er(s), exhibitor(s) and/or distributor^) of said

pornography, including to eliminate the produces) of the

134

Pornography and Civil Rights

performance(s) from the public view.

Proof of one or more of the following facts or conditions shal

not, without more, negate a finding of coercion:

(i) that the person is a woman; or

(i ) that the person is or has been a prostitute; or

(i i) that the person has at ained the age of majority; or

(iv) that the person is connected by blood or marriage to

anyone involved in or related to the making of the

pornography; or

(v) that the person has previously had, or been thought to

have had, sexual relations with anyone, including anyone

involved in or related to the making of the pornography; or

(vi) that the person has previously posed for sexually

explicit pictures with or for anyone, including anyone

involved in or related to the making of the pornography at

issue; or

(vi ) that anyone else, including a spouse or other relative,

has given permission on the person’s behalf; or

(vi i) that the person actually consented to a use of the

performance that is changed into pornography; or

(ix) that the person knew that the purpose of the acts or

events in question was to make pornography; or

(x) that the person showed no resistance or appeared to

cooperate actively in the photographic sessions or in the

events that produced the pornography; or

(xi) that the person signed a contract, or made statements

affirming a willingness to cooperate in the production of

pornography; or

(xii) that no physical force, threats, or weapons were used in

the making of the pornography; or

(xiii) that the person was paid or otherwise compensated.

b.

Traf icking in pornography: To produce, sel , exhibit, or

distribute pornography, including through private clubs.

(i) City, state, and federally funded public libraries or

private and public university and college libraries in which

pornography is available for study, including on open

shelves but excluding special display presentations, shall not

be construed to be trafficking in pornography.

Appendix C: The Cambridge Ordinance

135

(i ) Isolated passages or isolated parts shal not be actionable

under this section.

(i i) Any woman has a claim hereunder as a woman acting

against the subordination of women. Any man, child, or

transsexual who al eges injury by pornography in the way

women are injured by it also has a claim.

c. Forcing pornography on a person: To force pornography on

a person, including child or transsexual, in any place of

employment, education, home, or public place. Complaint(s)

may be made against the perpetrator of the force and/or

institution responsible for the force only.

d. Assault or physical at ack due to pornography: To assault,

physical y at ack, or injure any person, including child or

transsexual, in a way that is directly caused by specific

pornography. Complaint(s) may be made against the

perpetrator of the assault or at ack and/or against the maker(s),

distributor^), sel er(s), and/or exhibitor(s) of the specific

pornography.

e. Defenses: It shal not be a defense to an action under (18)a-d

that the defendant did not know or intend that the materials

were pornography or sex discrimination.

No damages or compensation for losses shal be recoverable

under 18(b), or other than against the perpetrator of the

assault or at ack under 18(d), unless the defendant knew or

had reason to know that the materials were pornography.

In actions under 18(b) or other than against the perpetrator of

the assault or at ack under 18(d), no damages or compensation

or losses shal be recoverable against maker(s) for pornography

made, against distributor^) for pornography distributed,

against sel er(s) for pornography sold, or against exhibitor(s)

for pornography exhibited, prior to the effective date of this

law.

Section 3: RELIEF: §D. (4. ) of Chapter 25, “Human Rights, ” shal

be amended to add:

c. (i) In actions under Sec. 18(b), and other than against the

perpetrator of the assault or at ack under 18(d), no temporary

or permanent injunction shal issue prior to a final judicial

determination that the challenged activities constitute a

violation of this ordinance.

(i ) No temporary or permanent injunction shal extend

beyond such materials) that, having been described with

136

Pornography and Civil Rights

reasonable specificity by the injunction, have been determined

to be validly proscribed under this law.

f. Civil damages, including punitive and compensatory, as wel

as reasonable attorneys’ fees, costs, and disbursements, shall be

available as relief for violations of Sections 18 (a-d),

notwithstanding any limitations as may be imposed or implied

by Sections 4 (a) (b) or (c) herein.

Appendix C: The Cambridge Ordinance

137

Appendix D

MODEL ANTIPORNOGRAPHY CIVIL-RIGHTS ORDINANCE

Section 1. STATEMENT OF POLICY

1. Pornography is a practice of sex discrimination. It exists in

[place], threatening the health, safety, peace, welfare, and equality

of citizens in our community. Existing laws are inadequate to solve

these problems in [place].

2. Pornography is a systematic practice of exploitation and

subordination based on sex that dif erential y harms and

disadvantages women. The harm of pornography includes

dehumanization, psychic assault, sexual exploitation, forced sex,

forced prostitution, physical injury, and social and sexual

terrorism and inferiority presented as entertainment The bigotry

and contempt pornography promotes, with the acts of aggression

it fosters, diminish opportunities for equality of rights in

employment, education, property, public accommodations, and

public services; create public and private harassment, persecution,

and denigration; promote injury and degradation such as rape,

bat ery, sexual abuse of children, and prostitution, and inhibit just

enforcement of laws against these acts; expose individuals who

appear in pornography against their wil to contempt, ridicule,

hatred, humiliation, and embarrassment and target such women in

particular for abuse and physical aggression; demean the

reputations and diminish the occupational opportunities of

individuals and groups on the basis of sex; contribute significantly

to restricting women in particular from ful exercise of citizenship

and participation in the life of the community; lower the human

dignity, worth, and civil status of women and damage mutual

respect between the sexes; and undermine women’s equal exercise

of rights to speech and action guaranteed to al citizens under the

[Constitutions] and [laws] of [place].

Section 2. DEFINITIONS

1. “Pornography” means the graphic sexually explicit

subordination of women through pictures and/or words that also

includes one or more of the fol owing:

a. women are presented dehumanized as sexual objects, things

or commodities; or

b. women are presented as sexual objects who enjoy

humiliation or pain; or

138

Pornography and Civil Rights

c. women are presented as sexual objects experiencing sexual

pleasure in rape, incest, or other sexual assault; or

d. women are presented as sexual objects tied up or cut up or

mutilated or bruised or physically hurt; or

e. women are presented in postures or positions of sexual

submission, servility, or display; or

f. women’s body parts—including but not limited to vaginas,

breasts, or buttocks—are exhibited such that women are

reduced to those parts; or

g. women are presented being penetrated by objects or

animals; or

h. women are presented in scenarios of degradation,

humiliation, injury, torture, shown as filthy or inferior,

bleeding, bruised or hurt in a context that makes these

conditions sexual.

2. The use of men, children, or transsexuals in the place of women

in (a) of this definition is also pornography for purposes of this law.

3. “Person” shal include child or transsexual.

Section 3. CAUSES OF ACTION

1. Coercion into pornography. It is sex discrimination to coerce, intimidate, or fraudulently induce (hereafter, “coerce”) any person

into performing for pornography, which injury may date from any

appearance or sale of any product(s) of such performance^). The

maker(s), seller(s), exhibitor(s) and/or distributor(s) of said

pornography may be sued for damages and for an injunction,

including to eliminate the product(s) of the performance(s) from

the public view.

Proof of one or more of the following facts or conditions shal not,

without more, preclude a finding of coercion:

a. that the person is a woman; or

b. that the person is or has been a prostitute; or

c. that the person has at ained the age of majority; or

d. that the person is connected by blood or marriage to anyone

involved in or related to the making of the pornography; or

e. that the person has previously had, or been thought to have

had, sexual relations with anyone, including anyone involved

in or related to the making of the pornography; or

f. that the person has previously posed for sexually explicit

pictures with or for anyone, including anyone involved in or

Appendix D: The Model Ordinance

139

related to the making of the pornography; or

g. that anyone else, including a spouse or other relative, has

given permission on the person’s behalf; or

h. that the person actual y consented to a use of a performance

that is then changed into pornography; or

i. that the person knew that the purpose of the acts or events in

question was to make pornography; or

j. that the person showed no resistance or appeared to

cooperate actively in the photographic sessions or events that

produced the pornography; or

k. that the person signed a contract, or made statements

af irming a willingness to cooperate in the production of the

pornography; or

1.

that no physical force, threats, or weapons were used in the

making of the pornography; or

m. that the person was paid or otherwise compensated.

2. Forcing pornography on a person. It is sex discrimination to force pornography on a person in any place of employment, education,

home, or any public place. Complaints may be brought only

against the perpetrator of the force and/or the entity or institution

responsible for the force.

3. Assault or physical at ack due to pornography. It is sex

discrimination to assault, physical y at ack, or injure any person in

a way that is directly caused by specific pornography. Complaints

may be brought against the perpetrator of the assault or at ack,

and/or against the maker(s), distributor(s), sel er(s), and/or

exhibitor(s) of the specific pornography.

4. Defamation through pornography. It is sex discrimination to defame any person through the unauthorized use in pornography

of their proper name, image, and/or recognizable personal

likeness. For purposes of this section, public figures shal be

treated as private persons. Authorization once given can be

revoked in writing any time prior to any publication.

5. Trafficking in pornography. It is sex discrimination to produce, sel , exhibit, or distribute pornography, including through private

clubs.

a.

Municipal, state, and federal y funded public libraries or

private and public university and college libraries in which

pornography is available for study, including on open shelves

but excluding special display presentations, shal not be

140

Pornography and Civil Rights

construed to be trafficking in pornography.

b. Isolated passages or isolated parts shal not be the sole basis

for complaints under this section.

c. Any woman may bring a complaint hereunder as a woman

acting against the subordination of women. Any man, child, or

transsexual who alleges injury by pornography in the way

women are injured by it may also complain.

Section 4. DEFENSES

1. It shall not be a defense to a complaint under this law that the

respondent did not know or intend that the materials at issue were

pornography or sex discrimination.

2. No damages or compensation for losses shal be recoverable

under Sec. 3(5) or other than against the perpetrator of the assault

or at ack in Sec. 3(3) unless the defendant knew or had reason to

know that the materials were pornography.

3. In actions under Sec. 3(5) or other than against the perpetrator

of the assault or at ack in Sec. 3(3), no damages or compensation

for losses shal be recoverable against maker(s) for pornography

made, against distributors) for pornography distributed, against

seller(s) for pornography sold, or against exhibitor(s) for

pornography exhibited, prior to the effective date of this law.

Section 5. ENFORCEMENT*

1. Civil Action. Any person who has a cause of action under this law may complain directly to a court of competent jurisdiction for

relief.

2. Damages.

a. Any person who has a cause of action under this law, or their

estate, may seek nominal, compensatory, and/or punitive

damages without limitation, including for loss, pain, suffering,

reduced enjoyment of life, and special damages, as well as for

reasonable costs, including attorneys’ fees and costs of

investigation.

b. In claims under Sec. 3(5), or other than against the

perpetrator of the assault or at ack under Sec. 3(3), no

* In the event that this law is amended to an existing human-rights law, the complaint would first be made to a Civil Rights Commission, or the complainant could choose whether to go to the Commission or directly to court. Any injunction issued by a Commission under Sec. 3(5), the trafficking provision, would require a trial de novo, that is, a full court trial after the administrative hearing. See the Indianapolis Ordinance for these provisions.

Appendix D: The Model Ordinance

141

damages or compensation for losses shal be recoverable against

maker(s) for pornography made, against distributor^) for

pornography distributed, against sel er(s) for pornography

sold, or against exhibitor(s) for pornography exhibited, prior

to the ef ective date of this law.

3. Injunctions. Any person who violates this law may be enjoined except that:

a. In actions under Sec. 3(5), and other than against the

perpetrator of the assault or at ack under Sec. 3(3), no

temporary or permanent injunction shal issue prior to a final

judicial determination that the challenged activities constitute a

violation of this law.

b. No temporary or permanent injunction shal extend beyond

such pornography that, having been described with reasonable

specificity by said order(s), is determined to be validly

proscribed under this law.

5. Other Remedies. The availability of relief under this law is not intended to be exclusive and shal not preclude, or be precluded

by, the seeking of any other relief, whether civil or criminal.

6. Limitation of Action. Complaints under this law shal be brought within six years of the accrual of the cause of action or from when

the complainant reaches the age of majority, whichever is later.

7. Severability. Should any part(s) of this law be found legal y invalid, the remaining part(s) remain valid. A judicial declaration

that any part(s) of this law cannot be applied validly in a particular

manner or to a particular case or category of cases shal not af ect

the validity of that part or parts as otherwise applied, unless such

other application would clearly frustrate the [legislative body’s]

intent in adopting this law.

142

Pornography and Civil Rights

The authors wish to thank the Skaggs

Foundation, Laura Lederer, Julie Melrose,

Jeanne Barkey, David Satz, John Stoltenberg,

Anne Simon, Karen Davis, and Organizing

Against Pornography for making it possible to

write and publish this book.

Content

Dworkin Catharine A. MacKinnon, Andrea Pornography and Civil Rights: A New Day for Women's Equality