Issues about free speech undermining the equality and dignity of girls helped usher within the now-fashionable equation between speech and violence, says famed civil liberties lawyer Nadine Strossen. Feminists have gone from arguing “that there’s a causal connection” between discriminatory expression (a class by which many would come with pornography) and violence to “denying that there’s any distinction in any respect.”
I had the pleasure of interviewing her final week about Defending Pornography: Free Speech, Intercourse, and the Combat for Ladies’s Rights, her 1995 ebook that was reissued with a brand new preface final month, and why free speech is a trigger that every one feminists ought to help.
Now a professor at New York Legislation Faculty and a senior fellow with the Basis for Particular person Rights and Expression (FIRE), Strossen headed up the American Civil Liberties Union (ACLU) from 1991 to 2008. She was additionally distinguished in anti-censorship feminist motion late final century, taking up the likes of Andrea Dworkin and Catharine MacKinnon over the authorized standing and cultural which means of sexual expression.
You possibly can learn half one in all our interview in last Monday’s Sex & Tech newsletter. Here is half two.
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Why do you assume there’s been such a revival of those kinds of porn wars not too long ago? Or did they by no means actually go away?
Strossen: All through my lifetime and, way more importantly, I believe all through American historical past, intercourse and sexual expression have all the time been significantly feared and significantly demonized all throughout the ideological spectrum, albeit for considerably completely different causes. In Defending Pornography, firstly of the ebook, I cite some anthropologists and a few cultural historians who touch upon why that’s, the puritanical heritage that now we have on this nation.
With regards to controversial sorts of what the Supreme Courtroom calls political speech, speech about public points, we’re extra speech protecting in some ways than international locations which can be in any other case comparable. We do shield so-called hate speech greater than different international locations, so-called extremism and disinformation. For the entire assaults on them right here, they do proceed to be protected in ways in which they are not in different international locations. Defamation, actually sturdy criticism of public officers and public figures, is extra strongly protected right here. However within the realm of the sexual, we’re the laughing inventory of European international locations and different comparable democracies as a result of we proceed to be so censorious. Even for the entire added speech safety that we have gotten from the Supreme Courtroom in current a long time, we nonetheless have this fully court-created idea of unlawful obscenity, which is totally excluded from any First Modification safety in any respect. We proceed to outlaw so-called “patently offensive” or “indecent” expressions on the published media. I actually can’t say “fuck” on radio or TV once I’m describing the Supreme Courtroom case by which that’s a central phrase, the proper to say “fuck the draft” throughout the Vietnam period.
I believe it actually by no means went away. It ebbs and flows and the actual factual context by which the suspicion in direction of intercourse adjustments considerably. However, Liz, I’d say a relentless theme may be very central to what we’re seeing now, which is the supposed hazard, the assumed hazard to youngsters of any sexually-oriented expression.
You write about how porn would not actually have a concrete definition, and that permits folks to twist it to being every little thing they do not like—which, right now, we see that with books and drag reveals and something having to do with queer tradition. Is that this one thing new or was this the case if you first wrote the ebook, too?
It was additionally the case once I wrote the ebook, and even earlier. I recall, from my very own childhood, assaults on comedian books and fears about even library books and bookstores. After I grew to become older and browse Supreme Courtroom selections, I may see that within the ’50s, the Supreme Courtroom was putting down legal guidelines that have been banning sexually oriented books of any type—well-known works, basic works of literature—from libraries and bookstores on the rationale that youngsters could be broken in some way by gaining access to these books and even seeing them within the home windows of bookstores.
There was a well-known case from [1948], Winters v. New York. Then there was one other one within the early ’60s, the Ginsberg case, about so-called “girlie magazines” being bought in comfort shops. In all these circumstances, together with in the newest case by which the Supreme Courtroom reaffirmed the fully court-manufactured obscenity exception—it is an previous determination that goes again to 1973, however the court docket hasn’t reexamined the difficulty since then. In each single case, the court docket assumes and presumes, acknowledging that there isn’t any proof, that sexual expression—once I say sexual expression, I imply simply being uncovered to it—essentially has some harmful penalties, particularly for kids. I believe it’s totally putting. The court docket says there is not any proof however we will simply take judicial discover. Meaning when one thing is so apparent that you do not want proof, just like the solar rises within the East, and it is simply placed on that aircraft, which might be fully unacceptable with respect to every other form of speech. The federal government has the burden to indicate that it’s really dangerous and that the one strategy to cut back the hurt is thru proscribing the expression. It is also simply an unquestioned assumption that youngsters particularly will probably be harmed.
Most not too long ago the place this has come up—a few of the newest efforts the place the Supreme Courtroom thought-about legal guidelines that have been proscribing expression in numerous new media on the rationale of hurt to youngsters….When [the internet] first jumps onto the political and public radar display screen and press radar display screen, the very first impulse is to censor sexual expression, primary, for the sake of defending youngsters, quantity two. So the Communications Decency Act simply sails via Congress [in 1996] with nearly no person on both facet of the aisle voting towards it.
The courts, to their credit score, merely mentioned, very explicitly: For the sake of resolving this case, we’d like not decide whether or not this expression really is dangerous to minors. We will merely assume that, for the sake of argument, as a result of even when it have been dangerous to minors, this regulation would nonetheless be unconstitutional as a result of it’s not sufficiently narrowly tailor-made. You could not, for the sake of defending minors, deprive adults of entry to constitutionally protected materials. That is the road that the court docket has taken extra not too long ago, acknowledging that there isn’t any proof that youngsters are literally harmed, however they do not attain points that they need not as a way to resolve the case.
A few the judges, to their credit score, have—in what we name dicta, as a result of it isn’t essential to determine the case—gone the subsequent step, together with conservative Republican judges in addition to liberal Democrat ones, saying, “By the best way, we predict that numerous this expression, removed from being dangerous to minors, is definitely useful to them, possibly even life and well being saving.” You already know, details about LGBTQ sexuality, for teenagers who’re residing in very remoted communities the place they haven’t any different entry to communities and could be suicidal. Details about [sexually transmitted diseases] and stopping being pregnant is definitely optimistic for minors.
You have talked concerning the methods numerous these arguments have simply been recycled over time. Have you ever seen something new? Have you ever seen shifts within the arguments that folks both on the left or the proper have been making towards pornography?
I have not. However in equity, the arguments towards censorship additionally have not modified. In some methods, every era is form of revisiting the problems over, and time and again. Both sides could consider that it’s coming upon new insights simply because they don’t seem to be conscious of the historical past that preceded them.
To the most effective of my data, what occurred within the late ’70s, early ’80s with the arrival of the MacKinnon-Dworkin so-called radical feminist strategy along with the overall idea of hate speech, I believe that was the primary time that there was a transparent emphasis on equality issues as being the best draw back of regardless of the controversial expression was. Up to now the emphasis was extra on issues concerning the expression resulting in crime and violence, undermining private security and nationwide safety. It isn’t shocking that as our society and our authorized system embraced a extra strong idea of equality via the civil rights motion and the ladies’s motion, that that grew to become a extra persuasive counterforce, if you’ll, to freedom of expression. That began a number of a long time in the past. It is comparatively current in our historical past, however I have not seen any massive developments since then.
After I consider the newest assaults from the left, together with many feminists, on sexual expression, they’re involved about revenge pornography, so-called harassing, discriminatory harassment, the creation of a hostile surroundings, or divisiveness, or making folks uncomfortable, or inflicting them to really feel trauma—I believe these are all particular examples of a normal concern about defending the equality and dignity of girls.
One of many issues I discovered actually attention-grabbing that you just write about is this concept of proscribing speech on the rationale that it is tantamount to unlawful conduct. You write about the way it’s a tactic that is employed in all completely different areas, and particularly within the realm of issues corresponding to abortion. Are you able to clarify somewhat bit about how these form of identical arguments that justify censorship of pornography or of “obscenity” are additionally utilized to reproductive freedom?
In my hate speech ebook, I’ve as an epigraph a quote from an early twentieth century professor at Harvard Legislation Faculty named Zechariah Chafee, who was one of many founders of the ACLU and one of many first theorists of free speech and advocates totally free speech. He mentioned, in the long term, each controversy about free speech comes all the way down to this: How shut a connection does there must be between the expression and sure feared or disliked conduct to warrant authorities censorship of the expression?
What we see on the a part of anti-abortion advocates in addition to advocates towards revenge porn, discrimination towards girls, harassment towards girls, and so forth, is a really broad idea of expression that would probably result in the conduct that they’re searching for to ban. Within the case of abortion, it is any details about girls’s our bodies, and reproductive capabilities, and any details about the supply of abortion or contraception.
This goes again to the infamous Comstock Act, the Victorian period regulation that handed in 1873 and many individuals are shocked to study continues to be on the books, and not too long ago has been relied upon by sure authorities officers and by a federal choose in searching for to outlaw not solely abortion itself, as a result of the regulation outlaws obscene expression, it outlaws abortion and abortifacients—which was understood to imply something that prevented conception—and in addition details about abortion and abortifacients or contraception.
I believe that the majority not too long ago, propelled by MacKinnon and Dworkin within the late ’70s and ’80s, there has really been an equation between violence and discriminatory conduct and expression. That is a brand new twist: Not making arguments that there’s a causal connection, however they’re denying that there’s any distinction in any respect.
Now, MacKinnon herself did write, repeatedly, that pornography is rape, and…to some extent, she was speaking concerning the assertion that as a result of no lady may really consensually comply with carry out for pornography, that essentially any such performer was being raped. However she went past that to speak about even verbal descriptions with none precise performer, lady being concerned, only a verbal description, is strictly the identical.
There was an notorious scenario the place a ebook critic, a ebook reviewer for the Philadelphia newspaper, Carlin Romano, was doing a really important evaluation of one in all MacKinnon’s books and within the evaluation he does a thought experiment about MacKinnon herself being raped. I am unable to bear in mind what his actual argument was. However that led to assaults on him by MacKinnon and by her boyfriend on the time who actually accused him of raping her—I imply, for him to explain for functions of creating some philosophical argument, that they actually denied that there was any distinction between that and precise bodily rape.
Now, on the time, I believe the overwhelming majority of us noticed that as simply form of some form of rhetorical hyperbole. However what’s occurred within the meantime is we see college students and school members, amongst many others…actually saying that there isn’t any distinction between phrases and violence. That phrases are hurt, phrases are violence. That is a…sword that has two harmful edges. Not solely does it slay expression that’s not actually violent conduct that immediately harms one other particular person…however the different consequence of that strategy is that violence is seen as justified to suppress phrases or expressions that you just dislike.
Within the newest survey that was performed by FIRE and School Pulse of scholars’ attitudes towards violence, a surprisingly excessive quantity agree that at the very least in some cases violence is justified to cease a speaker whose concepts you disagree with. I believe it was one thing like solely 30 p.c of all college students mentioned that violence is rarely justified to cease any person from conveying an thought that you just discover unpleasant or distasteful. Of the remaining 70 p.c, some mentioned it’s usually justified, and a few mentioned it’s sometimes justified.
It is attention-grabbing to hint that again to the arguments from MacKinnon and Dworkin. I hadn’t heard that earlier than.
What’s so attention-grabbing is that it is one other instance the place there’s such a disparity between what the regulation is and what the cultural notion is, in that the cultural notion—or misperception—can really be extra influential. Which is a part of the rationale why I spend a lot time crusading, or evangelizing as I name it, as a result of despite the fact that now we have very speech-protective regulation—you understand, it isn’t one hundred pc good nevertheless it’s actually stronger than it is ever been, with very stable help from very ideologically numerous justices—free speech is struggling due to the hostile cultural and social misperceptions which can be prevalent, particularly in so many establishments the place it is historically been cherished, together with academia.
Do you see any causes for optimism, both within the tradition of free speech or within the authorized battles surrounding it proper now?
Sure, I do. The pendulum is all the time swinging and a mirrored image of how dire the scenario has gotten is that there was numerous pushback, as individuals who I believe are principally supportive of free speech did not perceive how endangered it was. Growth after growth has persuaded increasingly more people who it truly is a fragile, susceptible scenario.
Amongst different indications of this phenomenon, this sample that I am describing, we have seen a spontaneous creation of free speech organizations on campuses amongst college students, amongst school members, amongst alumni and free speech initiatives which can be being supported by college presidents and school directors, as effectively.
As a result of in some methods this motion started in academia, together with the feminist anti-pornography motion that grew out of a seminar that MacKinnon and Dworkin have been instructing on the College of Minnesota Legislation Faculty.
I simply learn right now that it is the third anniversary of the Educational Freedom Alliance, a nonpartisan group of ideologically numerous school members who’re pledged to face up for the free speech rights of any school member whose tutorial freedom is being jeopardized, even when we completely disagree with the actual views or concepts which can be being aired by that school member. We have come to the protection, for instance, of such a controversial determine as [law professor] Amy Wax…That is a brand new group. Heterodox Academy is a number of years older, however that is additionally an important growth, which is admittedly rising very quickly. I spoke to its president right now, coincidentally, and he talked about that they’ve a brand new school community—that along with the nationwide group, chapters are spontaneously forming on campuses everywhere in the nation.
Most heartening to me is—as a result of I believe the cultural change actually has to come back from the grassroots and within the case of academia, which means college students in addition to the management—most heartening are the flourishing of scholar organizations in favor of free speech, and that is the place numerous my talking is going on. I am being invited by these pretty new scholar organizations which can be all for studying about free speech, creating alternatives totally free speech and for civil discourse on their campuses, they usually’re ideologically numerous. These are college students who’re hungering for open discourse and dialogue.
One other instance of a brand new establishment is the College of Austin, a complete new college that is attempting to offer a counter and hopefully a mannequin to spur the schools to really stay as much as their truth-seeking missions in a approach that they haven’t.
Studying Defending Pornography, there’s simply a lot that’s related right now—which is what I believe each time I learn books written within the Nineteen Nineties by feminists. It is identical to, wow, we’re nonetheless having these identical battles. However I need to ask you, why would you say that folks ought to learn this ebook now, in 2024?
To begin with, I want that I did not should make this suggestion. I want that the factors that the ebook made are so self-evidently clear that it will be a waste of individuals’s time to learn the ebook.
However what the ebook does clarify, I believe, are the everlasting debates which can be merely being recycled—and recycled with a vengeance as we communicate—about supposedly harmful speech supposedly undermining, particularly, equal and full human rights for historically marginalized teams together with girls and feminists and advocates of our rights, and LGBTQ+ people and advocates of their rights, and reproductive freedom. The ebook makes clear that every one of these rights, all of these teams, are particularly depending on a strong idea of freedom of speech that extends to sexually express speech.
The Supreme Courtroom has all the time mentioned that speech about public issues is on the apex of First Modification values. Mystifyingly, it has all the time handled sexual expression as on the backside of the hierarchy of free speech values. The explanation I say it is mystifying is as a result of there isn’t any distinction between these two classes. Consider all of the vastly essential public coverage points that activate issues of sexuality, together with sexual harassment, together with abortion, together with LGBTQ and so forth. rights. For those who care about these rights and acknowledge how endangered all of them are, it turns into particularly essential so that you can perceive that defending freedom for so-called pornography is a necessary underpinning of these rights.
This interview has been condensed and edited for fashion and readability.
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