In a paper about quotation, it seems appropriate to begin with some quotations. They'll help to introduce the questions on which I want to focus.
The universities ... were now [during the 80's] seeing ... verbal assaults so degrading and vicious I found I could not report some of them, even for educational purposes ....
Others strike a different note:
To understand how pornography works, one must know what is there.
One of the problems you have with pornography is that in some cases you cannot adequately describe it. You have to ... confront the art.
I have come to dislike talking about the effects of pornography with people who have not seen it for themselves,.... discussions on this controversial topic frequently descend into verbal combat totally removed from the reality.... Many people are more convinced of the harmful effects of pornography after seeing visual examples of this material than by reading about the now considerable scientific evidence of harm. Many women find the visual evidence particularly convincing - if they look at it. But few women do. Others find the combination of theory and visuals particularly effective. I therefore decided to include in this book a summary of some of the scientific research on the impact of pornography together with examples of visual pornography.
The right sort of classroom discussion of sexuality can help prevent harassment; the wrong sort can be harassment. How can we distinguish these two sorts? I want to urge careful attention to context in characterizing "hostile learning environments," and I'll do this by looking at real and hypothetical cases where sexually explicit material is used in educating those who are legally adult. My purpose, therefore, is to raise a question about some hard cases in the hope that we can work on finding an answer. I don t now know what the answer is. Throughout this discussion, I'll use the phrase, "hostile learning environment" as a shorthand for "learning environment that unreasonably interferes with an individual's education or is intimidating or hostile," modeled on the U. S. EEOC guidelines on sexual harassment [(29 -.F.R. §1604.11(a)(3)].
Although my focus will be sexual harassment in the classroom, current law provides characterizations of at least eight other sorts of harassment - corresponding to the broader categories of discrimination based on race, color, national origin, ethnic origin, religion, creed, age or disability - and it is important even for my limited purposes to keep this in mind. It is at least arguable that many of the same kinds of principles that apply to one sort will apply to the others as well, and this can provide an important constraint on such principles. I'll return to this point later.
Are the sorts of cases I'm concerned about unusual? Some hope so. But the hope is bound to be disappointed: any course that counts among its topics any one of the nine sorts of discrimination (and how to move beyond them) is likely to have an educational need to "quote hate speech," to make use of potentially objectionable representations. Courses in many areas - e.g.,
will often be affected.
I suspect that there's so little written about these hard cases because they're hard, not because they're uncommon. But even if these sorts of cases were unusual, it would still be worth figuring out how to address them. In doing so, we will gain a far deeper understanding of our more general ideas about harassment, and such understanding will have great practical utility. Hard cases don't always make bad law. After all, there's nothing more practical than a good theory, and there's no better test of a theory than a hard case.
To the best of my knowledge, there are only two published discussions that attempt to address this issue directly in anything approaching the relevant detail, and even these are far too brief to deal adequately with the relevant subtleties and complexities: Catharine MacKinnon gives a few paragraphs to the issue, Mari Matsuda, a few pages. To highlight those subtleties and complexities, I'll conclude with a brief discussion of some changes in MacKinnon's own pedagogical practices.
I'll begin by describing three apparently legitimate uses of sexually explicit material in the university classroom, each involving "sexual quotation:" sexually explicit material is presented in class to make feasible fully informed discussion. These uses fall into three categories, pertaining to legal studies, study of sexuality and its representation, and social scientific investigations. I ll then present five increasingly refined principles that say how to avoid sexually harassing students while quoting sexually explicit representations; recognizing the principles' flaws will give us a deeper understanding of our question.
Not everyone who sees a need for "sex quotes" conceives the issue in quite the same way as do the Reverend Wildmon and Professor Russell:
As a [female, feminist] teacher of a university course on pornography, I can sympathize with Russell's opening statement: "I have come to dislike talking about the effects of pornography with people who have not seen it for themselves...." If there's one thing I dislike even more, however, it's talking about pornography with people whose only exposure to porn has been a narrow band within the broad spectrum of pornographic materials, carefully preselected by the anti-porn feminists.
These remarks, together with those already quoted, suggest that there may well be a place for pornography in the classroom. To bring the matter even closer to the focus of this conference, and to begin my presentation of examples, consider the following case.
"Gender and the Law" is a required, team-taught course in the prelaw and law school curricula. A female, feminist legal theorist, co-teaching the "sexual harassment law" portion of the course seeks to make the issues as vivid as possible by bringing to class samples of the "pinups" that saturated Lois Robinson's work environment at Jacksonville Shipyards, Inc., some of which involved "full frontal nudity" of women. Suppose (contrary to fact) that a porn video, Hell Bent, had been left by coworkers in Robinson's locker; its central character is an over-40, hemophiliac, Afro-American nun with AIDS, who wants to "make up for lost time" in her sex-life. (This character is therefore relevant to eight or nine categories of discrimination in the law.) After Robinson discarded the video without comment, someone retrieved it from the trash can and arranged for it to be playing the Ku Klux Klan rape scene on the cafeteria TV monitor when Robinson arrived for lunch the next day. The instructor wants to show her students just how powerfully one such incident contributes to making a work environment hostile. So she proposes to show some of the most explicit segments in class. (To help her male students gain a keener appreciation of the issues, she wants also to show a gay video, paralleling the one displayed to Robinson.) Her co-instructor, a self-described "First Amendment hawk," agrees that it's worth showing those segments, mainly because she believes that they are not legally actionable - the tape as used in that workplace is "protected speech."
A co-instructor for the First Amendment portion of "Gender and the Law" argues strongly in favor of civil-rights based regulation of pornography, and shows his class videos that would meet the law's definition, as well as sexually explicit videos ("erotica") that would, he believes, be exempt. Another co-instructor might have doubts about or even reject this approach, perhaps because she endorses Lars Ullerstam's view (i.e., tolerance for allegedly harmless, victimless practices of most perversions) and argues for the essentially fluid performativity of socially constructed gender identity, which she highlights with a wide range of videos. Of course, obscenity law already regulates some pornography, and (otherwise?) obscene material might need to be shown for informed classroom discussion.
A faculty film theorist offers a course focusing on Linda Williams's long, intricate argument, beginning in her 1989 book Hard Core, that pornography constitutes an evolving film genre worthy of academic study. (Possibly, this evolution indicates changes in what's wrong with contemporary attitudes towards sexuality.) Williams cites particular pornographic films as key to the genre's definition, including Deep Throat, Behind the Green Door and Insatiable. (Williams cites more than 50 films.) Williams continued her argument in a 1992 paper in which she argued that pornography depicting "perversions" (e.g., butch/femme lesbian sex, BD and SM, and bisexuality) should not be censored since viewing it may help to raise important and useful questions about the characterization of sexual normality and the standard categories of sexual practice that are used to discuss these questions. Some of these sexual practices (esp. lesbian sadomasochism) and their depictions have been at the center of debate over MacKinnon-Dworkin anti-pornography ordinances. Williams cited an additional 11 videos in her paper. A representative sample of the movies must be viewed to assess her argument fairly and thoroughly - say, two per week for fourteen weeks. [Suppose (contrary to fact) that one of them is a poorly shot amateur video of lesbian sadomasochism depicting anal and vaginal fisting and excretory functions.] The course might also include study of sexually explicit feminist anti-pornography films, as well as study of any attempts by feminist anti-pornography activists to meet repeated challenges to present a clear and positive vision of human sexualities: erotica that makes a contribution towards the creation of "the uncompromised women's visual vocabulary."
Who better to give a course on these topics than Professor Williams herself? Because she had the following sorts of reservations, she was nevertheless not the first to offer such a course:
... I was genuinely not convinced that undergraduates, even the highly motivated, upper-division ones I would want to gear such a course towards, could or should be asked to handle the anxiety produced by materials whose aim is to put you in the throes of sexual arousal. After all, if I taught a course on comedy it would be imperative to talk about what made us laugh; if I taught a course on horror it would be imperative to talk about what made us cringe in terror; if I taught a course on pornography would we not need to talk about what turned us on - or off? Could we, should we, talk about that[?]
Despite these and other reservations, Williams decided to go ahead with the course:
In 1993, Catherine MacKinnon reignited the "porn wars" in feminism with two highly inflammatory publications which made me recognize that these [wars] still needed fighting and that a pedagogy of pornography might be an effective way to counter the kind of scapegoating of pornography that MacKinnon promulgates.
... [MacKinnon's] are the kinds of arguments that can ... fly [only] if you don't know much about visual pornography, its history, its conventions, and its various uses among very different kinds of viewers. ... the study of moving image pornography is the best antidote to the widespread belief among anti-pornography feminists that pornography is pure misogynist violence against women. Among other things, such a study can point out that a good proportion of visual pornography produced since the early seventies hasn't had anything to do with women at all.
This, at least, was my reasoning in putting together a [n upper division, undergraduate Women's Studies and Film] course....
The course was designed to survey the history of moving-image pornography from the early, underground stag films for all-male audiences to the quasi-legitimate "couples" films of the seventies to the proliferating varieties of gay male, lesbian, bisexual, straight, sadomasochistic, fetishist pornographies that are available now that low-budget video shooting and home VCR viewing predominate.
We saw a group of hard-core stag films the very first day and we continued to see at least one work of hard-core feature-length pornography each week and sometimes twice a week.
Faculty in anthropology, philosophy, psychiatry, psychology, sociology and statistics offer a course on methodological issues, concerning links among viewing, attitudes and action, that arise in doing studies of the effects of viewing sexually explicit material. The therapists among them are especially concerned with treatment of sexual disorders and dysfunctions (including the paraphilias, as well as what's colloquially known as "porn addiction"). Altogether, the published studies specify, say, fifty sexually explicit movies that have been used in various experiments. The studies come to significantly different conclusions (e.g., "It's not the sex, it's the violence," "It is the sex," "It's the combination of sex and violence," "There is a reliable distinction between erotica and pornography," "There's no reliable distinction between erotica and pornography,.".. ). These differences might very well be caused in part by the studies' varied uses of different types of films, and verbal descriptions of the films do not provide sufficient relevant detail, so some of them must be viewed in class. Two co-instructors who are experienced therapists and researchers on psychological trauma report that although viewing some sexually explicit material may be harmful to some people, the harm is on a par with the effects of viewing Holocaust films, the powerful pro-life film Silent Scream, and videos of the Vietnam war, material that they regularly show in their courses on trauma; they report further that no student has found such material inappropriate for the courses. The course is offered, but not without encountering some objections from other faculty; in an interview with a local newspaper reporter, one objector protests:
It's irresponsible to test a chemical on people who are more likely than not to suffer bad side effects (some of them quite serious). It's just the same for porn: in our sexist society, we're primed for the worst effects of viewing hard-core. You just can't inoculate against the effects through this sort of "education." What are we going to say to the women who are raped by "participants" in this course (the "excess rapes" [!])? "Don't blame us - we were engaged in the scholarly pursuit of knowledge. Be glad that you've helped us to understand how attitude affects action." Nazi social science is no better than Nazi medicine! And informed consent is either impossible or useless here: either you tell the subjects so little that the consent can't be informed, or you tell them so much that you bias the selection of subjects in irremediable ways.
Finally, we might imagine The Ultimate Meta-Course, CONTEMPORARY CONTROVERSIES IN SEXUALITY AND THE LAW, where controversies arising from the aforementioned situations (and others) are thoroughly investigated and debated anew.
What do all of these apparently legitimate uses of sex quotes have in common? One shared feature is the obvious direct relevance of the material to the courses' topics. This suggests:
(P1) Sexual quotation in the classroom is not sexual harassment if and only if a purpose of the course is to study the quoted material.
Had (P1) not actually been proposed at some universities (e.g., University of Texas/Dallas), it would not even be worth refuting. This principle is far too undiscriminating - it yields neither necessary nor sufficient conditions. It ignores the way in which material is presented, and so it ignores any effects specific to the quotational mode of presentation. Let's try
(P2) Sexual quotation in the classroom is not sexual harassment if and only if it is reasonable to believe that the quoting causes no offense.
Reasonable according to whom? "the" reasonable person? man? woman? victim? student? instructor? This is a very large question that will affect every proposal. Because it has been so widely discussed and debated, I'll focus on other issues or approach this one obliquely, but this issue never goes away, and my formulations will continue to reflect this.
(P2) is far too restrictive in disallowing any offense whatever. As many feminist instructors have emphasized, sexists may need to have their sexist attitudes challenged, and the instructors' classroom practices reflect this. Some religious conservatives might be offended by depictions of women working outside the home, but, if they're enrolled in the course, that's not by itself a good reason to exempt them or to exclude the material.
At some point, however, the level of offensiveness may become so great as to inflict harm on those exposed to the material. (Defenders of obscenity law often raise this point.) So the effects that we should be concerned about are the harmful ones:
(P3) Sexual quotation in the classroom is not sexual harassment if and only if it is reasonable to believe that the quoting causes no harm.
Despite its welcome shift in focus, (P3) is still too restrictive; it ignores the fact that education is often risky and can be painful. Over a decade's experience teaching the creationism controversy to more than five thousand Bible Belt engineering students helps me to remember that education is often quite risky and can be very painful for students who have previously regarded as fully settled, or even off-limits, questions nevertheless worth raising; trauma specialists tell me that studying trauma is often risky or painful, but still worthwhile for their students (even, or especially, for some of the trauma survivors). Our purpose is not to cause pain, we do what we can to help (where "we" sometimes includes therapists and counselors), we encourage our students to speak (see the sample syllabus), and we listen to them carefully (including, in many cases, their thanks). Three additions to (P3) suggest themselves:
(P4) Sexual quotation in the classroom is not sexual harassment if and only if it is reasonable to believe that the quoting causes no unnecessary harm; informed consent is obtained; and substitute work or no-penalty withdrawal are permissible to prevent unnecessary harm.
With each of the three additions comes important questions:
(a) What is informed consent? How is it to be secured? (and how well informed can the consent be when the main purpose of sexual quotation is to go beyond mere description, with effects that are difficult to predict?);
(b) How in general are necessary and unnecessary harms to be distinguished? (and how should we weigh risks to the more vulnerable?)
(c) Since actual psychological damage need not occur for (a legal finding of) sexual harassment (to be made), is (P4) strong enough? I'll comment on each of these questions in turn.
On (a): Securing informed consent from students and permitting students to substitute assignments for those that would be too harmful are both important measures, but I wouldn't want to (be legally forced to) exempt from most assignments or courses the student whose deeply held, possibly religiously inspired, beliefs entail racism, sexism, homophobia, creationism, advocacy of genital mutilation and/or opposition to all non-natural termination of pregnancy. Here we need to remember that "religion" is one of the categories in the relevant body of law; any restriction that is imposed here to avoid a gender-hostile environment must also have its parallel for avoiding religious (and other designated sorts of) harassment. There is so much that is deeply offensive to some religious (etc.) group or other that exempting every potentially offended student would leave us with a badly undereducated student population.
Informed consent, understood in part as willingness to tolerate a specified risk of incurring a specified harm, is, I'd guess, as difficult to secure in sexual as in surgical matters, where the pain of embarrassment (more generally: social disadvantage) as well as the pain of trauma are notoriously difficult to anticipate. Just as a patient can sue for malpractice discovered well after receiving substandard treatment, informed consent should also not foreclose the possibility of a student's discovering later that s/he was harassed and has a course of legal action.
On (b): Apart from the clear case where a student's pain is so great that it overwhelms any possibility of learning, thus qualifying the student for a substitute assignment or even for no-penalty withdrawal from the course, I'm not sure exactly how to distinguish in a general, principled way between necessary and unnecessary harm. The first question we should ask is, For which educational purpose is the harm necessary? Presumably, pursuit of some purposes, but not all, is worth a given risk. Which are the worthwhile ones? Implicit in any assessment of harm is some notion of (bounds on) normal function, where the latter is a normative, as opposed to merely statistical, notion, and is surely very complex, relational and context and subject-dependent; it's no less difficult to get a handle on this notion than on human nature itself. In the correlative sense of "harm," it is recognized that sometimes harm must be done now to bring about later normal function ("It took a long time to heal after my surgery, but it was worth the suffering."). Since in education, the psychological functioning is far more complex than the physical functioning at issue for most kinds of surgery, the "pedagogical malpractice" cases are typically much more difficult than the already difficult medical ones; with sex in the picture, things get even tougher.
Faculty sometimes complain that they cannot reasonably be expected to warn students about any topics that might be disturbing since, as noted above, so many topics might disturb some student at some time; one can't make all higher education risk-free. While the latter is true, there is, however, a simple strategy that can provide some very useful information. Faculty can survey their students at the course's beginning to discover student attitudes and ignorance on topics that the course covers; responses can be anonymous, and a statistical analysis can be a topic for class discussion. Quite apart from issues of harassment, this practice would be a good idea; the bravest faculty will repeat the survey at the course's end, to see if they have had any effect at all on their students' attitudes.
On (c): Can we get help from social psychologist Susan T. Fiske, who testified in both Price Waterhouse v. Hopkins and Robinson v. Jacksonville Shipyards, Inc.? In her expert testimony, she argued that a workplace environment that promotes sex-role stereotyping is more likely to be hostile, where four factors contribute to stereotyping: extreme minority status, priming, hierarchical power structure and tolerance for unprofessional conduct. So let us augment (P4) accordingly:
(P5) Sexual quotation in the classroom is not sexual harassment
if and only if
(a) it is reasonable to believe that the quoting causes no unnecessary harm and
(b) promotes no significant misuse of sex-role stereotyping;
(c) informed consent is obtained; and
(d) substitute work or no-penalty withdrawal are permissible to prevent unnecessary harm.
Applying this to the classroom is even trickier than applying it to the workplace:
Since not all (sex-role) stereotyping is in itself bad, and, as common sense and cognitive psychology tell us, some benign stereotyping is inevitable for the sake of cognitive efficiency, we need to distinguish uses from misuses - no small task.
Extreme minority status is often avoidable by enrolling a sufficient number of women (etc.) in a course. There might be justification for having some all-women (and some all-men) courses, but having mixed classes would be educationally valuable, too; and we might have male and female students view and discuss material in separate groups or individually as well as together.
Some priming is inevitable in classes where material is presented to illustrate stereotypes. But how much priming occurs will depend heavily on mode and context of presentation, and it may be feasible to overcome the effect by careful construction of the mode and context. And that, of course, is where we came in: with concerns about how to construct the educational context!
Hierarchical power structure is a feature of academic contexts, but not in the same ways as in the workplace; including female instructors and feminist methods of pedagogy can help. Tolerance for unprofessional conduct is intolerable, and there are plenty of clear cases of such conduct, but we need some principled way of sorting out the inevitable controversial cases. It might be inappropriate for an instructor to exclaim during a video, "Wow, look at those!," as a remark about a performer's physical attributes, but would an expression of amazement (e.g., "Gee, I didn't know that was possible") always be objectionable?
Fiske's own work suggests that it is the disinclination of the powerful to pay attention to the powerless that is a major factor in the misuse of stereotypes by the powerful. Here, educational contexts often enjoy a major advantage over the typical workplace environment. In each of the examples I've considered, the roles of stereotypes being presented, as well as their (mis)uses, are also being studied; because such educational uses of pornography are so very likely to be reflective and self-conscious, the likelihood that habitual misuse of those stereotypes will be reinforced is correspondingly diminished, though not, of course, eliminated.
Consequently, appealing to the legal precedent of Robinson v. Jacksonville Shipyards, Inc. is not particularly useful when it's learning environments that are concerned. This means, however, that there are no particularly useful legal precedents to guide us here.
In closing, I consider some remarks by Catharine MacKinnon, who seeks to raise serious doubts about the legitimacy of any course-required sexual quotation. Where I am cautiously optimistic, she is profoundly pessimistic. In her most recent, and perhaps only, published comment directly on the educational use of pornography, MacKinnon writes:
Teachers who wish to teach such materials should be prepared to explain what they are doing to avoid creating a hostile learning environment and to provide all students the equal benefit of an education....
Pornography, under current conditions, is largely its own context. Many believe that in settings that encourage critical distance, its showing does not damage women as much as it sensitizes viewers to the damage it does to women. My experience, as well as all the information available, make me think that it is naive to believe that anything other than words can do is as powerful as what pornography itself does [sic]. At the very least, pornography should never be imposed on a viewer who does not choose - then and there, without any pressure of any kind - to be exposed to it. Tom Emerson said a long time ago that imposing what he called "erotic material" on individuals against their will is a form of action that "has all the characteristics of a physical assault." Equality on campuses, in workplaces, everywhere, would be promoted if such assaults were actionable. (Only Words, 108-9, italics in original)
This passage seems to recommend extremely stringent requirements for informed consent. The phrase "then and there" suggests frequent checks on students' mental and other states. How frequent should they be (and of what sort, done by whom)? The phrase "without any pressure of any kind" could even be interpreted to mean: never - since, as MacKinnon's own writings have emphasized, the pressure of sexism is omnipresent, and the power differentials in the classroom can increase it ("Fiske in the limit"). So, what I've called a "major advantage" for educational contexts, MacKinnon sees as far less significant, at most.
It's safe to assume that no one s given more thought to these issues than MacKinnon has. It is a sign of their difficulty that MacKinnon herself has not always behaved in accord with the most stringent restrictions. In the fall of 1983, nine years before giving the lectures from which this quotation is taken, she and Andrea Dworkin taught a course at the University of Minnesota-Minneapolis covering pornography and its harms. Then, they did require their students to view pornography and to attend at least one live-sex show; a list of bars in Minneapolis where the shows could be viewed was provided with the syllabus. The penalty for either not viewing or not attending was a failing grade in the course. A more recent episode reflects MacKinnon's apparently changed practice.
A controversy arose during Fall '93 over the planning of a University of Michigan Law School conference on prostitution. The law students initially invited Detroit artist Carol Jacobsen to assemble a videotape on prostitutes' experiences. The students, many of whom had studied with MacKinnon, later asked Jacobsen to withdraw the tape because they feared that at least part of it was pornographic. Here are four remarks attributed to MacKinnon by Liza Mundy in "The New Critics." These remarks bear on MacKinnon's views about the permissibility of research and teaching about pornography.
(1) "Have you [Liza Mundy] seen the tape?," MacKinnon asks me on the phone. [Mundy says that she has not yet seen it.] "Depending on your own history of sexual abuse," she comments offhandedly, "you might want to be prepared for what it might do to you" (28col1).
(2) When a speaker at the conference called her about the video, she says, she phoned the students and advised them to take a look at it. Later, she spoke with them again and warned them of the dangers of showing pornography, even in an academic context: She had felt compelled to stop teaching a class she and Dworkin gave on the subject, she told them, after "several students had mental breakdowns as a result of remembering things that happened to them as children." Then she urged the students again to look at the tape: "I said, 'I haven't seen this stuff, I don't know if it is pornography, but, if it is, people need to think about its impact in an academic setting - and not assume that an academic setting is stronger than the pornography" (29col3).
(3) Female artists, she says, haven't begun to escape the miserable self-image foisted upon them by dastardly pornographers. Luckily, though, she has: "What you need is people who see through literature like Andrea Dworkin, who see through the law, like me, to see through art and create the uncompromised women's visual vocabulary" (30cols1-2).
(4) The compromise that will allow Carol Jacobsen's work to be shown has also failed to reconcile the pro- and anti-porn feminists on the University of Michigan campus. Indeed, Catharine MacKinnon and her supporters are sure Jacobsen's video will only strengthen their claim that porn cannot be transformed by context. Asked whether the video, as porn that at least aspires to be art, is still porn, MacKinnon replies, "It's not even a close call. This is sexually explicit material; women are being hurt, used, violated, stripped" (33cols1-2).
So, if these quotes are accurately reported, it appears that MacKinnon has changed her mind on an important matter. Perhaps MacKinnon's current attitude can be expressed by varying a Kantian slogan: "I have therefore found it necessary to deny knowledge, in order to make room for equality." I find no clear indication in her published work of exactly how MacKinnon proposes to balance these values in educating for a better future.
I would tentatively recommend a more moderate course of action, as illustrated by the sample syllabus: students are given "fair notice" in the syllabus, in individual pre-enrollment discussions (before the first class meeting), and during the first class meeting; the team of instructors, male and female, is alert to issues of both pleasure and danger, assisted in part by analysis of the initial survey of students' attitudes; and provisions are made for substitute work or withdrawal in cases where students are so pained that their learning cannot continue.
Because, however, I have not resolved most of the questions that I have raised, I end pretty much where I began, without precise instructions on how to use sex quotes without sexually harassing students. But I hope that you ll agree that it s worth seeking better answers than any we've now got, and that (P5) is a good place to begin looking. More generally, I would urge all sides of the debates about sexuality to address these sorts of hard cases in sufficient detail to make it clear exactly how they propose to balance the values that they take to be implicated.
Since I began with some pertinent quotations, I'll end with a quotation that nicely encapsulates our present difficulty.
What is most disconcerting about Dworkin and MacKinnon, finally, is that they do not parody pornography or the gothic; instead they madly identify with these genres. ... [S]eeing the harm that pornography causes necessarily involves the very splitting and dissociation, the appropriation, that in turn problematizes the critique. With MacKinnon and Dworkin, it is no secret that theory produces what it also describes. Their mad identifications remind us that the space within quotation marks is no sanctuary. (italics mine)
David F. Austin, Department of Philosophy and Religion, NCSU
 I'm not an attorney, and I'm not offering legal advice. Nor is my primary focus the law, though I do look to the law for advice about what we ought to do in the classroom. This is part of a larger project on hate speech and informed consent, which is in turn part of an even more ambitious project on unity in philosophy of mind and language and moral theory. A version of this paper is appeared in J. Elias et al, eds., Porn 101: Proceedings of the First World Pornography Conference (Prometheus Books, 1999).
Mari Matsuda, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Westview Press, 1993), quoted in Introduction, 13 (italics added). Matsuda repeats and elaborates on the point in another essay:
At every single university at which I spoke - north, south, east, and west - I learned of serious incidents of racist, homophobic, or anti-Semitic hate. University administrators reported that they had never seen anything like it. A pattern emerged in the 1980s of the new integration colliding with the new racism - or the new old racism. The universities, long the home of institutional and euphemistic racism, were now seeing something different: the worst forms of gutter racism. Asian-American students spat on; Nazi literature appearing on Jewish holy days; and cross burnings racist slurs, and homophobic insults so degrading and assaultive that I found I could not in good conscience reprint them, even for educational purposes, in the book I wrote on the topic. (105)
Mari Matsuda, "Assaultive Speech and Academic Freedom," reprinted in: Where is Your Body? and Other Essays on Race Gender and the Law (Boston: Beacon Press, 1997) 103-117. The book Matsuda refers to is: Mari Matsuda and Charles Lawrence, We Won t Go Back: Making the Case for Affirmative Action (Houghton Mifflin, 1997).
Catharine A. MacKinnon, "Pornography as Defamation and Discrimination," Boston University Law Review 71 (November 1991) 793 (text attached to n11). MacKinnon continues with a characteristically graphic description:
In the hundreds and hundreds of magazines, pictures, films, videocassettes, and so-called books now available across America 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; racial stereotypes are made into sexual fetishes. 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 reenactments of actual 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, nursing mothers, amputees, other disabled or ill women, and retarded girls, their conditions fetishized, are used for sexual excitement. In the pornography of sadism and masochism, better termed assault and battery, women are bound, burned, whipped, pierced, flayed, and tortured. In some pornography called "snuff," women or children are tortured to death, murdered to make a sex film. The material features incest, forced sex, sexual mutilation, humiliation, beatings, bondage, and sexual torture, in which the dominance and exploitation are directed primarily against women.
Would a reading of this description suffice to yield the required kind of knowledge? Why?
Reverend Donald Wildmon, in his testimony at the Wojnarowicz defamation trial, 6/25/90, U.S. District Court, NY; quoted in -. Carr, "Trying Times," On Edge: Performance at the End of the Twentieth Century (Hanover: Wesleyan University Press, 1993), 262. Wildmon was defending himself against the charge that he had defamed artist David Wojnarowicz by excising fourteen images from the latter's allegedly pornographic work and mailing them to media and congressional leaders.
Diana E. H. Russell, Against Pornography: The Evidence of Harm (Russell Books, 1993), vii. Russell has also said that she is considering writing a similar book on child pornography, which would include pictorial examples of the latter. Other pertinent remarks, the first "con" and the rest "pro" :
...they don't want other visions laid out ... as equally valid alternatives. The word heresy is rooted in haeresis, meaning "choice." ... "mere exposure" ... does affect students' values.
Stephen Bates, Battleground: One Mother's Crusade, the Religious Right, and the Struggle for Control of Our Classrooms (Poseidon Press/Simon and Schuster, 1993), Chapter 11: "Beyond Providence," 309. [Members of minorities are typically quite sensitive to the fact that there's often nothing "mere" about "mere exposure." In this case, the minority is a subgroup of Christian Fundamentalists, (or, as some prefer to say instead, finding the latter term offensive, "Orthodox Christians") but the lesson is general.]
Diana Russell has given us the ultimate proof of the impact and reality of pornography.... used properly, it could save women's lives. - Gloria Steinem, back cover, Against Pornography: the Evidence of Harm
As they say, "A picture is worth a thousand words." .... No academic has ever dared to reproduce the pornographic images themselves and then comment on them. The effect is profoundly enlightening, sobering and challenging. Brava, Diana, for your determination and originality. - Phyllis Chesler, back cover, Against Pornography
...Now when we speak about pornography, we all will know precisely what we are talking about. Bravo and thank you Diana Russell for your brilliant analysis, your courage and commitment. - Jane Caputi, back cover, Against Pornography
...for the first time in a feminist book about pornography, she shows us the images which, she says, teach men to rape women, so the reader can see for herself what the pornography debate is all about. Judge for yourself! - Melissa Farley, inside front cover, Against Pornography
...after attending Diana's feminist anti-pornography slide presentation ... I was moved to tear up several hundred Hustler magazines in convenience stores... - Nikki Craft, inside front cover, Against Pornography
This book takes a risk in using illustrations from contemporary pornography. Women may find it distressing to see the sexually explicit violence and subordination of women this multi-million dollar industry is selling. Men - and women too - may find it sexually arousing: that's what it is intended to do. But information is power. Men need to know what pornography means and does to women. The text that accompanies the picture provides this information. And women can be empowered by knowing what is being done to them in the name of sex, even if that knowledge is painful or frightening. The pornography industry thrives on ignorance, secrecy, shame and silence. Exposing it is a risk worth taking. - Catherine Itzin, facing title page, Against Pornography
Although I am concerned primarily with hostile environment harassment, and not the generally less controversial targeted harassment, there does seem to be good reason to connect the two. See my "Universal Targeting and Hostile Environment Harassment" for an argument worth considering.
Matsuda, in the 'Hard Cases' section of her, "Public Response to Racist Speech: Considering the Victim's Story," (repr. Words That Wound, 37-44); and MacKinnon in, Only Words, 107c9.
For an excellent review of prevailing First Amendment concerns about hate speech codes, see Rodney A. Smolla, "Academic Freedom, Hate Speech, and the Idea of a University," in William W. Van Alstyne, ed., Freedom and Tenure in the Academy (Duke University Press, 1993) 195-225. See also William W. Van Alstyne, "The University in the Manner of Tiananmen Square," Hastings Constitutional Law Quarterly 21 1 (1993), about how the road to Hell can be paved with the best intentions. Also helpful are: Patricia Meyer Spacks, ed., Advocacy in the Classroom: Problems and Possibilities (St. Martin s Press, 1996) and Louis Menand, ed., The Future of Academic Freedom (University of Chicago Press, 1996). The best defense of hate speech codes, sensitive to a wide range of concerns, is Joshua Cohen, "Freedom of Expression," Philosophy and Public Affairs v22 n3 (1993) 207-264. The best brief critique of MacKinnon's work from a Rawlsian (or any other) perspective is Joshua Cohen, "Freedom, Equality, Pornography," in Austin Sarat and Thomas R. Kearns, eds., Justice and Injustice in Law and Legal Theory (University of Michigan Press, 1996) 99-137.
These categories are not meant to be either exhaustive or exclusive. For the most part, my examples will involve the subclass of 'sex quotes' that might be called "video porn quotes," because these are among the most controversial. There are, of course, many uses of the term "porn" (and its cognates), and it is crucial to be clear on which use is being made. Here, I'll let the examples indicate the kind of use. One good working definition of "pornography" has been offered by my former colleague Donald VanDeVeer:
Pornography is the sexually explicit depiction of persons, in words or images, created with the primary, proximate aim, and reasonable hope, of eliciting significant sexual arousal on the part of the consumer of such materials (987). [This characterization is population-relative:] Important in deciding whether material is likely to evoke significant sexual arousal [an admittedly somewhat vague term] is its probable effect on an average person in a certain population,.... The reactions of particular individuals are inconclusive (988).
Encyclopedia of Ethics (Garland, 1990), 986-989. If the population has just one member, this yields a person-relative definition. Additional context-dependency would make the definition much more useful and complex.
Of course, their reasons for fighting pornography are different - the same might be said for Catharine MacKinnon and Beulah Coughenour, who fought together to pass an anti-pornography ordinance in Indianapolis in 1983 - though Wildmon and Russell agree that a necessary part of the fight is confronting pictorial material that they would both take to be pornographic.
Jen Durbin, "When a Scientist Stacks the Deck: A Review of Diana E. H. Russell's Against Pornography: The Evidence of Harm," Spectator Magazine v33 n2 issue 835 (Sept 30-Oct 6, 1994), 4.
Robinson v. Jacksonville Shipyards, Inc. 760 S. Supp. 1486 (M.D.Fla. 1991).
On a relevant subgenre, see Gloria Cowan and Robin R. Campbell, "Racism and Sexism in Interracial Pornography: A Content Analysis," Psychology of Women Quarterly 18 (1994) 323-338.
It is, I think, an interesting question just how close the parallel can be; I leave this matter for another occasion.
in his Erotic Minorities (New York: Grove Press, 1966). The work of Judith Butler on performativity and gender is relevant here. See her Gender Trouble (Routledge, 1990), Bodies That Matter (Routledge, 1993), and, for a more direct connection to issues raised in this paper, Excitable Speech: A Politics of the Performative (Routledge, 1997). Butler use of "citation" in "citationality" is fairly close to my somewhat extended use of "quotation."
One can readily imagine a series of parallel examples with other sorts of hate speech regulations at issue.
Three other film theorists who have done important work on the genre are Constance Penley [e.g., "Feminism, Psychoanalysis, and the Study of Popular Culture," in Lawrence Grossberg, Cary Nelson and Paula A. Treichler, eds., Cultural Studies (NY: Routledge, 1992) 479-500; "Brownian Motion: Women, Tactics and Technology," in Constance Penley and Andrew Ross, eds., Technoculture (University of Minnesota Press, 1991), 135-161]; Mandy Merck [e.g., "More of a Man," Perversions (Virago Press, 1993), 217-235]; and Tania Modleski [Feminism without Women: Culture and Criticism in a "Postfeminist" Age ].
Other uncited films may also be important for assessing her argument, e.g., amateur videos, the most rapidly growing portion of this video market; the most popular non-amateur tapes produced in the last six years, since Williams's book was finished, to indicate changing themes; meta-porn, e.g., Making of a Porn Movie, Porn Screen Tests, Tori Welles Goes Behind the Scenes; or, for the purposes of supposed contrast, the Better Sex Video series, sexually explicit videos (widely advertised in "mainstream" periodicals, e.g., the New York Times) produced by sex educators and therapists to teach approaches for adult heterosexual activity.
"Pornographies on/scene, or diff'rent strokes for diff'rent folks," in Lynn Segal and Mary McIntosh, eds., Sex Exposed: Sexuality and the Pornography Debate (London: Virago Press, 1992), 233-265. See also: Linda Williams, "Second Thoughts on Hard Core: American Obscenity Law and the Scapegoating of Deviance," in Pamela Church Gibson and Roma Gibson, eds., Dirty Looks: Women, Pornography and Power (London: BFI Publishing, 1993), 46-61; and "A Provoking Agent: The Pornography and Performance Art of Annie Sprinkle," in the same collection, 176-191. And see: Arthur and Marilouise Kroker, eds., The Last Sex: Feminism and Outlaw Bodies (NY: St. Martin's Press, 1993), as well as Laura Kipnis, Bound and Gagged: Pornography and the Politics of Fantasy in America (Grove Press, 1996).
See, for example: Elizabeth A. Meese, (Sem)erotics: theorizing lesbian: writing (NY: NYU Press, 1992), and references cited therein. Mandy Merck, "The Feminist Ethics of Lesbian S/M," Perversions (Virago Press, 1993), 236-266. Patrick D. Hopkins, "Rethinking Sadomasochism: Feminism, Interpretation, and Simulation," Hypatia v9 n1 (Winter 1994) 116-142. Claudia Card, Lesbian Choices (Columbia University Press, 1995).
Punishment of Anne (1979), Every Woman Has a Fantasy (1984), Suburban Dykes (1990), Bi-Coastal (1985), Bisexual Fantasies (1986), Bi-Night (1985), Bi-Dacious (1985), Bi-Mistake (1985), Karen's Bi-Line (1989), Bi- and Beyond: The Ultimate Union (1986), Bi- and Beyond III: The Hermaphrodite (1991).
An issue worth considering is: where should the funding for material purchase or rental come from? This issue also arises in connection with obscenity law's application to the classroom.
E.g., Not a Love Story. For criticism of NALS, see B. Ruby Rich, "Anti-Porn Soft Issue, Hard World," in Patricia Erens, ed., Issues in Feminist Film Criticism (Indiana University Press, 1990), 405-417; and I. -. Jarvie, Thinking about Society: Theory and Practice (D. Reidel, 1986). A similar example can be constructed concerning the practice, common in some cultures, of female genital mutilation, which is the focus of the documentary, Warrior Marks: Female Genital Mutilation and the Sexual Binding of Women (Pratibha Parmar, producer; accompanying book from Harcourt Brace, 1996), inspired by Alice Walker's novel, Possessing the Secret of Joy (Harcourt Brace, 1992).
The quoted phrase has been attributed to MacKinnon; see remark (3) reported by Liza Mundy, below. MacKinnon appears to allow for the possibility of erotica, in Gloria Steinem s sense of the term, "premised on equality." See "Francis Biddle s Sister," repr. in Feminism Unmodified (Harvard University Press, 1987), 176. See also James Lindgren, "Defining Pornography," University of Pennsylvania Law Review v141, n4 (April 1993): 1153-1275. Lindgren gives examples of works that, MacKinnon reportedly said (during a phone interview with him) are erotica: specified passages in Andrea Dworkin, Ice and Fire; Marilyn French, The Women's Room; and Deanne Stillman and Anne Beatts, eds., Titters: The First Collection of Humor by Women. Examples of pornography cited are: specified passages in Georges Bataille, Story of the Eye; Pauline Reage, Story of O; and pictorial material from much so-called lesbian erotica (non-sadomasochistic and produced by lesbians for lesbians), as well as Hustler, Penthouse and Playboy.
Linda Williams, "The Pedagogy of Porn: Censorship, Self-Censorship and the Undergraduate Curriculum," 2, 4-8, UC 'Censorship + Silencing' Series, UCSB, 11/4/94. Similar courses have been given at University of California/Santa Barbara (UCSB), University of California/Berkeley (even before Professor Williams moved there), and, I believe, at NYU, Duke and other universities. [See "Teaching Sexual Images," Special Section of Jump Cut n40 (March, 1996).] Professor Constance Penley taught a similar course during Winter quarter, 1993, at UC/SB, and will soon teach it again; she describes her experience in, "Porn Pedagogy: Teaching Pornography as a Popular Film Genre," also delivered at the 'Censorship + Silencing' Series. Her class enrolled about seventy students, about evenly divided between men and women. Penley reports several surprises in teaching the course:
...when I got in front of the class and looked up, what I saw were 70 terrified faces. That is when I realized that they thought they were going to be seeing slasher films with sex, that is, films in which the most misogynistic violence and sex were one and the same. Their terror was not the terror of their own embarrassment about watching sex writ large on the silver screen in a room full of other people; embarrassment turned out not to be such a big deal.... Rather, it was that they believed, often without having read any of the feminist anti-porn books, but through having absorbed those prevailing ideas through the media's presentation of them, that porn was nothing but the violent subjugation and degradation of women by men. (4)
Yet another surprise for me was that, in contrast to every other class I have ever taught, here or at other universities, it was the women in the class who took the lead in class discussions.... What I realized is that there is no available public discourse for men to speak about pornography in anything but a denunciatory way, given the way pornography has been typified as male violence against women. Even when male students come to understand that this typification is wildly skewed and have begun to think about the interests behind such a campaign of disinformation, they still cannot speak as freely as the women can about what they have learned. (5c6)
...would you rather the professor put the materials on reserve for you to check out to take home or would you prefer watching them in the classroom with other students and the professor? Unanimously, they said they wanted to watch them together, in class. ... They wanted the sanction of the classroom, of the academic, scholarly setting....(7)
I said that every class is a kind of community for the duration of the class and this one would be no different, but that they should try to be sensitive to their own and other's possible embarrassment and ambivalence given the fact that people do not usually see these materials in such a setting. Within two weeks the class ... had become a workable community. ... I have never had a more well-behaved, disciplined, harder working group of students. (8)
There is another reason, directly linked to the genre, why watching these films turned out not to be so embarrassing, which is the high level of humor found in them, or rather the high level of low humor. (8)
Penley ends her description with these remarks:
Any talk about knowledge inevitably brings us to a discussion of fear. Pedagogy is about the joy of teaching and learning but it is also about learning to negotiate one s own fear of learning and all the horrible obstacles set up on the outside to block learning. Toward the end of the class the students, now with a working knowledge of what pornographic film is, and what it is not, began asking, "In whose interest was it to have us be so afraid, so very afraid? Who and what interests does it serve to have sexually explicit films be such a bogeyman?" ... Nothing could have made me happier as a teacher that a course that had begun in fear was able to end with a thoughtful discussion of the socially coercive uses of fear. (14-15)
See the Diagnostic and Statistical Manual of Mental Disorders IV (DSM IV) (American Psychiatric Association, 1994), 493-538, as well as 417-423, 621.
Supreme Court decisions highlight the protected status, under the First Amendment, of some medical educational uses of otherwise obscene material [e.g., Miller v. California 413 U.S. 15 (1973) and even New York v. Ferber 458 U.S. 747 (1982)]. But, as Rosalind A. Coleman and James Rolleston, "Anatomy Lessons: The Destiny of a Textbook, 1971-72," South Atlantic Quarterly 90:1 (Winter 1991) 153-173, shows, a medical context is no guarantee of 'purity in representation'. The anatomy text discussed used out-takes from Playboy centerfold photo sessions to illustrate female anatomy; male anatomy was not similarly favored with Playgirl photos.
On powerful material: here are (close paraphrases of) remarks on student experience with classes that have included viewing of pornography:
Women's Studies classes are the one place where it would be safe to discuss this material. Please try to find a way to include it in your classes. There is a lot of confusion and anger around the issue of pornography, sex, etc., and if we can't discuss it in Women's Studies, where will we be able to deal with it?
Several students reported being very disturbed by Dreamworlds [a video on sexist images in MTV Rock] - more than one to the point of actually vomiting after leaving class. But [even] the students who were physically ill thought we should continue to use the video in the future.
Several students felt they had to leave the room, but none of them suggested that this video [Not a Love Story] be dropped from this course.
Do not be afraid to broach subjects that may cause a student to remember his/her trauma.
I think we forget how strong people are.
I saw The Silent Scream [a powerful anti-abortion film] in a Women's Studies class as an undergrad, and it was pretty horrible to watch, but it never occurred to me that it wasn't appropriate for the class. [Why shouldn't the same be true of porn?]
Although it might be pedagogically unwise to introduce a unit on porn in, say, an endocrinology or a thermodynamics course, doing so won't be harassment unless it's done in the wrong way ("This'll get you really hot!"), and we're trying to figure out what that way is. To give an example of an arguably legitimate departure from a course-description: suppose that Greene College has been embroiled in debate over a recent showing, in a Women's Studies class, of Deep Throat, often cited by Andrea Dworkin and Catharine MacKinnon as a document of the abuse of its female lead, Linda Marchiano (aka "Linda Lovelace"). The instructor for Thermodynamics sees that students are distracted from their studies in physics by the heated debate, and so decides, with the students' agreement, to spend one or two classes helping students to organize their thoughts on the matter, with the reasonable hope that this will help them focus on physics in subsequent classes. This might well be an effective measure under the circumstances, and even if other means would be better, it's not clear that we should rule out this measure in advance. (P1) also places no constraints on the range of courses and purposes; see the discussion of (P5), below.
See Nancy Tuana, "Sexual Harassment in Academe: Issues of Power and Coercion," College Teaching v 33 n2 (1985) 53-57, 61-63; repr. in Edmund Wall, Sexual Harassment: Confrontations and Decisions (Prometheus Books, 1992) 49-60. One of Tuana's main conclusions is this: "Sexual harassment can occur even in situations in which the instructor has no intention of threatening the student. Given an instructor's obligations to the students, if it was reasonable for a student to perceive a threat, then the instructor is morally responsible for the sexual harassment even though he or she did not intend it." (59) See also, Robert Nozick, "Intention and Coercion," Journal of Applied Philosophy v5 n1 (1988) 75-85. A very interesting case for considering the question, Should s/he have known better?, is Professor Jane Gallop's; see: Margaret Talbot, "A most dangerous method: The disturbing case against Jane Gallop, feminist provocateur," Lingua franca v4 n2 (Jan 1994) 24ff; Jane Gallop, "Sex and Sexism: Feminism and Harassment Policy," Academe (September-October 1994) 16-23; Jane Gallop, Feminist Accused of Sexual Harassment (Duke University Press, 1997).
or, in a geophysics course, by discussion of radiometric dating and the challenge it presents to some versions of creationism; see the discussion of (P3), below.
In Christianity and its art, disturbingly realistic descriptions and depictions of Christ's crucifixion, Biblical rapes and the deaths of martyrs are common and play a significant role in religious education and indoctrination - even when children are involved. Thorough-going opposition to use of potentially offensive images therefore seems unwise for those who believe such depictions should be allowed. It will not be easy to craft a principle that allows such imagery while prohibiting the educational use of such work as Andres Serrano's "Piss Christ," intended by its maker as pro-Christian, and made famous by Senator Jesse Helms. (For a brief review of Serrano's art that places his most well-known work in a larger context, see Celia McGee, "A Personal Vision of the Sacred and Profane," New York Times, 1/22/95, Section 2, 35.) Of course, Christianity is far from unusual among religions in its educational use of powerful and potentially offensive imagery. This range of examples also pertains to (P4) and (P5), below, which contain the distinction between necessary and unnecessary harm. See also: Cheryl Smith Blum, "The Place of Art in Catharine MacKinnon s Legal Theory," Journal of Contemporary Law v19 n2 (1993): 445c482.
In the physician's oft-repeated adage, "First, do no harm," the term "harm" is typically taken to mean: unnecessary pain or damage. I am not here building "unnecessary" into the meaning of "harm," for reasons that will become clear presently.
It is often remarked (see above) that "one picture is worth a thousand (or ten thousand) words." Since quotation is a kind of demonstration, and demonstratives meanings are not expressed by any descriptions, the remark understates the difference. (See also the discussion of "shock value," in notes below, where the difference between demonstrating and describing hate speech is at issue.)
Harris v. Forklift Systems, Inc. 976 F.2d 733 (6th Cir 1992), 113 S.Ct. 1382 (1993). Justice O'Connor wrote for a unanimous court:
Certainly Title VII bars conduct that would seriously affect a reasonable person's psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, ..., there is no need for it also to be psychologically injurious.
Justice Ginsburg concurring:
The critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.... [T]he adjudicator's inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff's work performance. To show such interference, the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. ... It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ma[k]e it more difficult to do the job.
At the question and answer session after I gave a brief version of this paper, Professor Penley expressed this concern: actively seeking informed consent could well be taken as an unwarranted concession that sexually explicit material is especially dangerous in the classroom, and remarked that her own administration has not required any notice to students beyond a typically informative syllabus and has been otherwise supportive of her pedagogical efforts in this area. I'm glad that some instructors work in such supportive environments, but since law, as well as all politics, is local, it should not be assumed that all are similarly favored. The degree of caution exercised in securing informed consent should probably depend in part on local considerations, and having students sign a form may be, all relevant factors considered, the wisest precaution in some locales.
The MacKinnon/Dworkin ordinance expresses profound skepticism about the efficacy of the usual means for securing informed consent. Here is the text of the relevant section:
Coercion into pornographic performances. Any person, including transsexual, who is coerced, intimidated, or fraudulently induced (hereafter, "coerced") into performing for pornography shall have a cause of action against the maker(s), seller(s), exhibitor(s) or distributor(s) of said pornography for damages and for the elimination of the products of the performance(s) from the public view. (1) Limitation of action. This claim shall 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 shall not, without more, negate 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 attained 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 for or with anyone, including anyone involved in or related to the making of the pornography at issue; or (g) that anyone else, including a spouse or other relative, has given permission on the person's behalf; or (h) that the person actually consented to a use of the performance that is 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 in the sexual events that produced the pornography; or (k) that the person signed a contract, or made statements affirming a willingness to cooperate; or (l) 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.
It seems that (l) is to be read as including non-physical threats to the individual in question; (2) would then cover a case in which all the other conditions [(a) - (k) and (m)] were met, and where the woman's child was being held hostage by her estranged husband. The one sort of case that is said to be common and would meet all of the conditions in (2) is one of severe economic coercion: a woman is desperate for money, and so performs in pornography. This might be thought of as a 'hostile economic environment', seen as depriving the performer of a capacity freely to consent. Similarly, a woman who derives a significant measure of her self-esteem from pornographic exhibitionism would be seen as confined in a 'hostile social, psychological and political environment', unable fully to appreciate the nature of the alternatives from which to choose, and so unable to give truly informed consent. Economic, social, psychological and political pressures all operate to some degree in the classroom, and there is thus an argument to be made along these lines for extreme caution in securing informed consent from students who are being asked to view pornography. Until the argument is fully specified by advocates of this approach to informed consent, it will be difficult to determine how they believe one should prepare for discussions of pornography.
This might be different from a situation in which no informed consent is given and the person realizes this well after the event; in this instance, informed consent is given but is not sufficient to protect the surgeon from future legal action. (Suppose the surgeon, whose patient is a surgeon in the very same subspecialty, encounters extremely unlikely circumstances that were not reasonably foreseeable and deals with them substandardly.) One could stipulate that the latter was not really informed consent (part of the information was that the surgeon agrees to deal with unlikely circumstances in a way that meets standards, and the standards say what's reasonable in those unlikely circumstances), but it might be better to acknowledge that in very complex matters, there are limits on how well informed the person can or should be and that pedagogical or surgical malpractice is consistent with consent that's as fully informed as could reasonably be expected. For a useful general discussion, see David Archard, Sexual Consent (Westview, 1998).
For many of the same reasons, characterizing reasonableness is difficult: in this sense, a reasonable person is one whose capacity for reason is functioning and being applied normally. While many have written at length about these more general issues, MacKinnon among them, no one has presented a sufficiently clear and detailed picture to yield immediate answers to the questions about quotation discussed here. For helpful discussion of the related notion of agency, see Kathryn Abrams, "Sex Wars Redux: Agency and Coercion in Feminist Legal Theory," Columbia Law Review 95 (March, 1995) 304. Susan Etta Keller, "Viewing and Doing: Complicating Pornography s Meaning," Georgetown Law Journal (July, 1993) 2195, (also cited by Abrams) makes room for classroom use of pornographic material without, however, resolving many questions about what sorts of uses should be allowed.
Matsuda offers advice based on her classroom experience:
I have seen too many students confused by the claim that unless we let hate mongers into the room, critical inquiry will not take place. In fact, as a teacher, I have found that exactly the opposite is true. One of the hardest things to do in the classroom is to have honest, mutually critical discussions about racism, anti-Semitism, homophobia, and misogyny. We do not have enough of these discussions. We do not have models of how to have them, and a screaming match is the worst possible model. Hard-and-fast rules against name-calling and requiring listening before attacking are ways I have managed to get these discussions started in my classroom. I have also had to ask more than one student to remain in the room when they wanted to run out in tears. These are hard conversations, and pornography, anti-Semitic, racist, and homophobic epithets do not further critical, probing dialogue. (142) (italics mine)
It is the value of speech I hope to promote by suggesting that we many need to limit some speech. This is indeed a paradox - no easy walk to freedom, no easy civil liberties. (143)
-both passages from "Progressive Civil Liberties," reprinted in: Mari Matsuda, Where is Your Body? and Other Essays on Race Gender and the Law (Boston: Beacon Press, 1997) 131-145.
Asking questions carries some risk, since they, too, can be disturbing, but in this case, the risk does seem a reasonable one to take. (Though this, too, requires some argument.)
This suggestion presupposes that a course's topics are pretty much settled in advance. But don't we want to allow for spontaneity, tailoring of focus to student interest, and midccourse corrections? We do, and it would still be prudent and good pedagogical practice to check with those enrolled to see if newly proposed topics or materials hit any 'hot spots.' If they do, then use of substitute assignments or withdrawals may be offered. (An example may help: suppose that the members of a Metaphysics seminar find that it would suit their collective interests and purposes to include a discussion of abortion. One of the participants speaks to the instructor privately, explaining that she's just had an abortion and is still too upset to engage such material with any educational benefit. Is there any serious question about what's reasonable in such a case?)
While this is a reasonable way to deal with mid-course corrections, it does not address the issues raised by the pedagogical utility of shock value. Here is an example, based directly on an actual case, that will help to explain what I mean: A white, male professor of First Amendment law is teaching a law school class at a large state university. He has a well-deserved reputation on campus of being a stalwart 'friend of minority interests'. He seeks to illustrate the power of speech with vivid examples, and, thinking that "Fuck the Draft!" is too familiar to jolt anyone, instead writes, "Fuck all niggers" on the blackboard. The African-American students in the class complain to the administration, and the professor apologizes to them. It was clear to everyone involved that the professor's intent was to illustrate the power of hate speech, not to endorse the message it carried. In a discussion of this case, there was sharp and deep disagreement among experienced legal academics, all of whom had previously shown considerable sensitivity to hate-speech issues, about the acceptability of the professor's example. Is shock value no value at all? How shocking is too shocking? Are some sorts of shock 'off limits', regardless of their intensity?
With current computer and networking technology, it would be feasible to do surveying on a departmental or university scale. It would be helpful to study the dynamics of students' views during their educations. At a time when higher education is being asked to pay more attention to assessing effectiveness in teaching, the data provided by such surveys could be genuinely (as opposed to merely 'PR') useful.
Price Waterhouse v. Hopkins 490 U.S. 228, 104 L.Ed. 2d 268, 104 S.Ct. 1775. See also Susan T. Fiske et al, "Social Science Research on Trial: Use of Sex Stereotyping Research in Price Waterhouse v. Hopkins," American Psychologist v46 n10 (October 1991) 1049-1060. More recently, she has summarized research that helps to further explain the role of stereotyping: "Controlling Other People: The Impact of Power on Stereotyping," American Psychologist v48 n6 (June 1993) 621-628; this article also discusses Robinson v. Jacksonville Shipyards, Inc. 760 S. Supp. 1486 (M.D.Fla. 1991). An approach similar to the one endorsed by Robinson has been taken more recently in Jenson v. Eveleth Taconite Co. 824 F.Supp. 847 (D.Minn. 1993); see esp. 879c883, on Dr. Eugene Borgida s expert testimony. For an earlier proposal sensitive to this range of issues, see: Helen E. Longino, "Pornography, Oppression, and Freedom: A Closer Look," in Laura Lederer, ed., Take Back the Night: Women on Pornography (William Morrow, 1980).
or, rarity: "solo or near solo status, which exists when the individual's group comprises 15-20% or less of the environment's population."
or, category accessibility, is a "process in which specific stimuli in the ... environment prime certain categories for the application of stereotypical thinking, e.g., availability of photographs of nude or partially nude women, sexual joking and sexual slurs."
e.g., "tolerance of profanity and sexual joking."
See Fred von Lohmann, "Single-Sex Courses, Title IX and Equal Protection: The Case for Self-Defense for Women," Stanford Law Review (1996) on the legal permissibility of gender (etc.) separated classes, courses and programs.
Some helpful references: Frances A. Maher and Mary Kay Thompson Tetreault, The Feminist Classroom, (Basic Books, 1994); Amanda Konradi, "Teaching About Sexual Assault: Problematic Silences and Solutions," Teaching Sociology 21 (Jan 1993): 13-25; Susan Swartzlander, Diana Pace and Virginia Lee Stamler, "The Ethics of Requiring Students to Write about Their Personal Lives," The Chronicle of Higher Education, February 17, 1993, B1-2. Some of the best of these methods were used by Socrates.
She advocates .".. a theory of the mutually reinforcing interaction between power and stereotyping, mediated by attention. The powerless attend to the powerful who control their outcomes, in an effort to enhance prediction and control, so forming complex, potentially nonstereotypic impressions. The powerful pay less attention, so are more vulnerable to stereotyping. The powerful (a) need not attend to the other to control their outcomes, (b) cannot attend because they tend to be attentionally overloaded, and (c) if they have high need for dominance, may not want to attend. Stereotyping and power are mutually reinforcing because stereotyping itself exerts control, maintaining and justifying the status quo." (Abstract for "Controlling Other People," 621.) Although Fiske is only one of many social psychologists who have done relevant research, I focus on her work because of her prominent role in two high-visibility court cases. For a helpful review of the psychological literature, see: DL Hamilton and JW Sherman, "Stereotypes," in RS Wyer, Jr., and TK Srull, eds., Handbook of Social Cognition 2nd ed. Vol. 2: Applications (Lawrence Erlbaum Associates, 1994) 1c68 (esp. 47-56, Stereotype Change). This review notes that it has been found to be very difficult to change or dislodge stereotypes. While this is discouraging, it also suggests that students will not be significantly more sexist after the hypothesized exposure to pornography. For a more nuanced perspective on the (limited) explanatory power of stereotype-based hypotheses and policies, see Elisabeth Young-Bruehl, The Anatomy of Prejudices (Harvard University Press, 1996).
As the example using Linda Williams's work reminds us, courses with sex quotes can hardly help dealing with many different sexual stereotypes, including gay, lesbian, African-American, etc., and many sub- and cross-types.
Of course, there s more that needs to be said about what kind of reflectiveness is helpful. Psychologists Krafka, Donnerstein, Linz and Penrod present evidence for the hypothesis that exposure to 'hard-core' and violent pornography need not reinforce sex-role stereotyping and that follow-up debriefing can successfully counteract any of the negative effects that they found. See Daniel Linz and Neil Malamuth, Communication Concepts 5: Pornography (Sage Publications, 1993), for relevant summaries and citations. But see also: Neil Macrae, Galen V. Bodenhausen, Alan B. Milne and Jolanda Jetten, "Out of mind but back in sight: stereotypes on the rebound," Journal of Personality and Social Psychology v67 n5 (Nov 1994) 808c818; Macrae et al suggest that an active attempt to inhibit stereotypical thinking can have an unwanted rebound effect, and this needs to be kept in mind in designing any debriefings.
As MacKinnon has explained, the MacKinnon/Dworkin model anti-pornography ordinance is intended to allow some porn quotes: "The definition [of pornography in the ordinance] does not include all sexually explicit depictions of subordination of women. That is not what it says. It says, this which does that: the sexually explicit that subordinates women." "Francis Biddle s Sister," 176. The ordinance also contains an exemption for library archiving of pornography: "City, State, and federally funded public libraries or private and public university libraries in which pornography is available for study, including on open shelves shall not be construed to be trafficking in pornography but special display presentations of pornography in said places is sex discrimination." And it makes actionable forcing of pornography on a person: "Any woman, man, child, or transsexual who has pornography forced on them 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." Classroom showing might be relevantly similar to a special display presentation in a library; forcing might be avoided by securing informed consent, though other parts of the ordinance (on defenses against a charge of coercing someone into performing in pornography) make it clear that securing consent is not a straightforward matter. Neither the language of the ordinance nor the surrounding commentary by its authors suffice to answer the questions about quotation discussed here.
Lingua Franca, vol. 3, no. 6 (Sept/Oct 1993): 26c33. I have not verified the accuracy of any of these attributions.
In her Sense and Censorship: The Vanity of Bonfires [an early version of her Sex and Sensibility: The Vanity of Bonfires (Ecco Press, 1994)], Marcia Pally reports that Dworkin has claimed to be willing to give up her current legal right to publish books like Mercy if that will help the cause of women's rights. The preceding suggests that MacKinnon might agree to something similar for research and teaching about pornography. But MacKinnon has reportedly indicated that Nabokov's Lolita may be misread as an endorsement of teenage sexuality, instead of an indictment of child sexual abuse - but that that is no reason to ban the book. [Reported by Katie Roiphe, The Morning After: Sex, Fear, and Feminism on Campus (Little, Brown, 1993), 143-144. MacKinnon's remarks were made in answer to Roiphe's question after one of MacKinnon's Gauss seminars on criticism at Princeton in 1992. These lectures are the basis for MacKinnon's Only Words (Harvard University Press, 1993).] It is not clear to me exactly how one would allow for the 'misreading defense' of a work while at the same time limiting research and teaching uses of pornography. I have not verified the accuracy of either Pally's or Roiphe's reports.
The point here is not character assassination, but the difficulty of the issues involved. Changing one s mind is not the same as being hypocritical or inconsistent at a time. Some of MacKinnon's critics need to remember this.
"I have therefore found it necessary to deny knowledge, in order to make room for faith." Immanuel Kant, Critique of Pure Reason (Kemp Smith trans.), B xxx.
Matsuda's 'hard cases' focus on racist hate speech. In her discussion of The Case of the Dead-Wrong Social Scientist (Words that Wound, 41-42), "who makes a case for racial inferiority in an academic setting based on what is presented as scientific evidence," she comments, .".. outlawing this type of speech might be inappropriate. Assuming the dead-wrong social science theory of inferiority is free of any message of hatred and persecution, the ordinary, private solution is sufficient: Attack such theories with open public debate and with a denial of a forum if the work is unsound in its documentation." (italics added) But without being told more about what constitutes freedom from "any message of hatred and persecution," it is not clear how to apply this here, especially given Matsuda's emphasis on the "special vulnerabilities" and "captive" status of students (The Special Case of Universities, 44-45). Perhaps the latter could be used to support MacKinnon's current position. Did MacKinnon change her mind because she came to see requiring pornography-viewing as too much like quid pro quo sexual harassment? This would assimilate "Fuck or fail" and "Eat porn or fail," an assimilation which seems required by MacKinnon's views. The puzzle would then be to explain her earlier pedagogical practice. But explaining her present practice along these lines would allow her to reject the Kantian slogan, since, on this line, there's either no knowledge, or no knowledge with any net worth, denied.
Two of the most interesting kinds of criticisms of MacKinnon's work are developed by Robin West and by Drucilla Cornell. West, who writes with unusual clarity, argues that MacKinnon is insufficiently attentive to the complexities of the psychological data about women's sexuality yielded by the technique of consciousness raising. Cornell faults MacKinnon for failure to develop a positive vision of human sexuality, and so for failure to explain how to get from awful 'here' to better 'there'. (I see West's and Cornell's points as two aspects of one deeper criticism.) See: Robin West, "The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory," Wisconsin Women's Law Journal 3:81, 1987, 81c145; Robin West, "The Feminist-Conservative Anti-Pornography Alliance and the 1986 Attorney General's Commission on Pornography Report," American Bar Foundation Research Journal No. 4 (1987) 681c711; and "Pornography as a Legal Text: Comments from a Legal Perspective," in Susan Gubar and Joan Hoff, eds., For Adult Users Only: The Dilemma of Violent Pornography (Bloomington: Indiana University Press, 1989), 108c130; and Drucilla Cornell, The Imaginary Domain: Abortion, Pornography and Sexual Harassment (Routledge, 1995).
Since MacKinnon herself claims to have seen far more pornography than almost any male in her audiences, and remains nevertheless a very "high-functioning" individual, her own goals would seem to require explication of those features of, for example, her and Dworkin's personalities and circumstances that allowed their apparent transcendence of the worst negative effects. Is anti-pornography activism somehow protective against these effects? If so, how exactly? Perhaps closely studying such people will help us to discover how to make the transition from a pornographic society to an erotically healthy one; if pornography is rape-like, then the literature on survivors of sexual abuse should yield pertinent information about what makes it feasible for the abused to grow beyond their abuse. For insightful remarks about which speech acts MacKinnon believes herself to be performing, see Stanley Fish, Doing What Comes Naturally (Duke University Press, 1989), 16c23, 25. In "Performance and Paradox: How MacKinnon Shows What Cannot Be Said," I suggest that MacKinnon s written work might best be interpreted under the hypothesis that she is a political performance artist who has (deliberately?) trapped herself in the role of Most Radical Feminist, with the consequence that the strongest affirmation she can now make of her gender identity is, as she is quoted as saying, "not not a woman." [Dinitia Smith, "Love is Strange," New York (March 22, 1993) 36-43.]
The Guidelines in the syllabus will be crucial in helping to ensure that, in Justice Ginsburg's words, "members of one sex are [not] exposed to disadvantageous terms or conditions of [education] to which members of the other sex are not exposed."
In her review of Richard A. Posner, Sex and Reason, and Edward de Grazia, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius ("Pornography Left and Right," Harvard Law Review, Winter 1995), MacKinnon objects:
The two authors converge in complaining that the civil rights approach to pornography does not take the "value" of the materials into account, as obscenity law does. Because obscenity law criminalizes sexual materials defined as morally bad, it makes sense to allow their value -- moral good -- to outweigh it. The civil rights law, by contrast, defines pornography in terms of the sex discrimination -- the real harm -- it does. It makes pornography civilly actionable when coercion, force, assault, defamation, or trafficking in sex-based subordination can be proven....
There is something monstrous in balancing "value" against harm, things against people, this on which left and right speak as one. It is not only balancing the value of human rights against the value of products that violate them. It is not only balancing rape, murder, sale, molestation, and use against pleasure and profits, or even aesthetics and politics. It is not only writing off the lives and dignity of human beings as if that were a respectable argument in a legal and academic debate. It is not even that this position that elevates the rights of pimps and predators over their victims and targets is part of current law. It is prior: when injury to women and children can be balanced against the "value" of pornography, women and children do not have human status -- even though, pace de Grazia, women stand up everywhere.
I hope that it is clear that the balancing I speak of here is not of the monstrous sort.
Here is a homework assignment to encourage consideration of educational uses of sex quotes outside the classroom: Suppose that I had illustrated this paper with visual porn quotes and given it as a talk. Would I thereby have sexually harassed any members of the audience? What if the speaker had instead been well-known to the audience as a female anti-pornography activist (e.g., Diana E. H. Russell, or Catharine MacKinnon in 1983)? Consider also a wide range of possible prior warnings, illustrative material, display conditions and kinds of audience members. For discussion of an actual case, see the discussion of Professor Gail Dines's lectures in Eithne Johnson, "Porn-education Road Shows," Jump Cut n41 (May 1997). Reports are due by semester's end. No incompletes! Submission via e-mail encouraged: firstname.lastname@example.org.
Naomi Morgenstern, "There is Nothing Else Like This: Sex and Citation in Pornogothic Feminism," in Thomas Foster, Carol Siegel, and Ellen E. Berry, eds., Sex Positives? The Cultural Politics of Dissident Sexualities (New York: NYU Press, 1997), 60.
For helpful discussion or correspondence, thanks to Priscilla Alexander, Randy Carter, Drucilla Cornell, Jill Dahlmann, Gail Dines, David Drooz, Judith Ferster, Cynthia Freeland, Ruth Ginzburg, Thomas Grey, Charlotte Gross, Catherine Itzin, Robert Jensen, Susan Keller, Carol Leigh, Barbara Levenbook, Naomi McCormick, George Panichas, Jennifer Parchesky, Constance Penley, Robert Peters, Maria Pramaggiore, Ann Rives, Alix Schwartz, Barbara Herrnstein Smith, Wendy Stock, John Stoltenberg, Nancy Tuana, William Van Alstyne, Eugene Volokh, Lee Wentz, and Linda Williams. Apologies to those I've inadvertently omitted, and to those who wish they had been omitted.