Fighting the First Amendment's Free Ride
By Catharine A. MacKinnon
Harvard University Press
Book review by Carl Sessions Stepp
Carl Sessions Stepp (email@example.com), AJR's senior editor, teaches at the Philip Merrill College of Journalism at the University of Maryland.
By Catharine A. MacKinnon
Harvard University Press
152 pages; $14.95
With "Only Words," Catharine MacKinnon has touched off a rousing argument about pornography and hate speech. She hasn't won it. But she has locked onto something important, serving notice that the First Amendment's free ride may be over.
Unfortunately, she delivers the message in intemperate terms certain to polarize.
"You grow up with your father holding you down.. so another man can make a horrible searing pain between your legs," she writes. "When you are older, your husband ties you to the bed and drips hot wax on your nipples... Your doctor will not give you drugs he has addicted you to unless you suck his penis."
That's just her opening paragraph.
MacKinnon is both a Michigan law professor and a fed-up feminist, and her language shifts between layered argumentation and furious ventilation. But the underlying idea is compelling: that words cannot be separated from actions, especially those based on sex.
MacKinnon calls into question "the extent to which the First Amendment protects unconscious mental intrusion and physical manipulation, even by pictures and words, particularly when the results are further acted out through aggression and other discrimination."
Like a skier plunging down a steep slope, her logic begins on firm terrain but quickly skids toward the uncontrollable.
"Society is made of words, whose meanings the powerful control, or try to," she writes reasonably, hitting a theme familiar to journalists who understand words' profound influence.
Then, accelerating precariously: "At a certain point, when those who are hurt by them become real, some words are recognized as the acts that they are."
Veering toward the edge: "Discrimination does not divide into acts on one side and speech on the other. Speech acts... Acts speak." And, finally, perhaps flying over it: "To express eroticism is to engage in eroticism, meaning to perform a sex act. To say it is to do it, and to do it is to say it."
The book leaves itself wide open to attack. MacKinnon never defines pornography, or distinguishes between the consensual and the nonconsensual or even between fantasy and rape. She leaps unpersuasively from the indisputable (words are powerful) to the implausible (words equal actions). She much too casually disregards the protection free speech offers the oppressed. And she barely acknowledges the thought-police implications of her own words.
These objections may undermine the extremities of her position, but powerful elements remain at its core.
First, words do carry a force far beyond ink on paper or dots on screens. I'm not convinced that words are actions, but like MacKinnon I accept that they are more than "only words." They certainly go beyond abstractions. Words connect intimately with behavior.
MacKinnon intriguingly reasons that speech should be seen not just through the First Amendment but through a 14th Amendment "equality lens" as well.
"Social life is full of words that are legally treated as the acts they constitute without so much as a whimper from the First Amendment," she writes. Examples: saying "kill" to an attack dog, verbally fixing prices that defy antitrust laws, displaying "whites only" signs at public accommodations. Why, she argues, shouldn't sexually oriented hate speech receive similar treatment as "not a mere expression of opinion but a practice of discrimination in verbal form"?
By now, First Amendment absolutists should be squirming. And other current developments amplify their discomfort: anger over the crass, exploitive violence of TV; the revolt against the rampant use of abusive language to harass the defenseless and oppressed; and the accumulating debasements that reflect society's violence and prejudice.
For many, these daily degradations cut deeply into the reverence for the sacred intangibles of free speech. In the same way that escalating violence makes anti-gun control absolutism seem insane, it's hard to muster much sympathy for a company's right to market lurid arcade games to children.
I believe, with de Tocqueville, that free expression is the "constitutive element of liberty." Its preeminence as a trump value undergirds our very way of life.
But I also think questions such as MacKinnon's must be engaged. The imperial assumption that First Amendment values are transcendent faces too many challenges. To redevelop the consensus surrounding free expression in light of changing times, First Amendment lovers must grapple anew with the central issue MacKinnon fails to resolve: Where are the boundaries between expression and action? At what point, if anywhere, does abusive and hateful speech becomes the equivalent of shouting fire in a trigger-happy culture?###