Dworkin V Mackinnon

Living in a first-world country, our freedoms and rights are protected above all else by the law. We are allowed freedom of speech, race, religion, thoughts and ideas, etc. These freedoms allow us to express ourselves to the best of our abilities. Yet some ideas that these freedoms allow us to transmit are censored in order to prevent harm to others; hate speech, propaganda, etc. is frowned upon as it may bring harm to others. The case of pornography in all this and its legal regulation is the belief of Catharine MacKinnon's that it promotes the inequality in the sexes by discriminating women showing them as subordinates of men. MacKinnon wants to see pornography banned in order to help women's position in the social spheres of society. Her opponent is Ronald Dworkin who stands for negative liberty in all its forms, believes that the banning of pornography is not the answer to help women's status. Censorship to him is an infringement on one's freedom and he does not advocate any sort of chains on freedom in anyway.

MacKinnon argues that pornography should be banned in order to help women become socially equal to men. Her logic is that since men see the visual subordination of women, in the form of rape, sexual harassment, and abuse, they will go on to commit these acts against women in reality. Abuse against women is common because of the numerous media by which pornography is transmitted. This commonness that pornography is now being attributed to is seen as its destructiveness in that it means that courts no longer have the ability to distinguish artwork and pornography. Not to so say that MacKinnon gives no evidence of its prevalence, she does so in her analogy between adult pornography and child pornography. Child pornography is regulated by law and is banned because it portrays sexual acts with children, which may cause them mental harm, and many of the children in these acts are harassed and abused. MacKinnon says that child pornography is banned because it is not as widespread and shows children in disgusting, inferior, and mentally and socially harmful positions. Therefore it is banned. MacKinnon sarcastically calls the legal censorship of child pornography a "miracle" because by contrast, adult pornography not only shows women in disgusting, inferior, and mentally and socially harmful positions, but also portrays rape, violence, and sexual murder, and yet it is not banned. It is not banned because adult pornography is rampant in society and is therefore is accepted by society.

All in all, MacKinnon argues that pornography is the reason that women are abused and subordinated in society. So banning pornography is the answer to women's plight for equality. With this rather simple thought MacKinnon drafts the Indianapolis Ordinance. The Ordinance defines pornography as a medium for discriminating against women. Under the Ordinance, pornography means the sexual, graphic, and explicit subordination of women, via pictures, in words, videos, etc., that shows women presented as "sexual objects" that find pleasure in pain and humiliation, enjoyment in rape and mutilation, in being severely hurt, in being shown as inferior or weak, and being shown as "sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display" (p. 847 "Law and Morality"). Under the Ordinance it is irrelevant whether or not the work has any literary, artistic, political, scientific, or any sort of merit or value that may make it important. "If a woman is subjected, why should it matter that the work has other value" (p. 847 "Law and Morality"), this was a comment from one of the drafters of the Ordinance. Feminist groups have argued that the law will make sure that men drop their views of women as subordinates and adapt to the idea that they are equals. However groups opposing the Ordinance say that as it does not distinguish between art and obscenity many historical and cultural icons would be banned such as James Joyce's Ulysses and Homer's lliad both of which depict women as objects of desire, conquest, and domination. Indeed this attitude of utter censorship of ideas is one that I do not agree with. What if one of these works portrayed rape, in order to illustrate the horror that goes through a woman's mind? I would think MacKinnon would be in quite a dilemma as to whether to ban the material or save it. That question just shows the broad spectrum of materials that the Indianapolis Ordinance effectively bans in its endeavour to censor pornography to bring equality to women.

One of the cases brought under the Indianapolis Ordinance was American Booksellers v Hudnut. A challenge was made questioning the constitutionality of the Ordinance and it was ruled unconstitutional by Judge Easterbrooke, of The Court of Appeals, after analysing the Ordinance's definition of "pornography". "Pornography", as defined by the Ordinance, "is the graphic sexually explicit subordination of women, whether in pictures or in words". Because it rends a whole slew of media indiscriminately as "pornography" without taking into consideration of the community, it is undemocratic.

So in the end the Ordinance was struck down as unconstitutional. This reflects the American view that free speech should be protected no matter what. MacKinnon disagreed with the decision and said that it is based on the notion that "the more harm speech does, the more it is protected" (pp. 878-79 "Law and Morality"). Protecting of free speech may be a good cause as it allows for many ideas to get through, however, what is the good when all that may come out of it is evil? Nazi propaganda is evil and transmits hatred towards Jews, but in protecting free speech one would be protecting that as well. Then what is the point in protecting hate speech and propaganda? This is the problem that MacKinnon sees in American law that rights and freedoms are guaranteed no matter what, that people are free to do as they wish without state intervention, or the fact that there is too much negative liberty in America. The upholding of equality of the individual or group in Canada is what attracts MacKinnon. Both American law and Canadian law allow free speech. However, I see a fundamental difference in that Canadian law makes sure that if one person has freedoms and rights they do not use them to impede on another's, in which case the Charter allows for the curtailment of the offenders freedoms and rights. The Hudnut case would have turned out quite different if it were a Canadian case, I imagine that a Canadian judge acting on Canada's respect for the rights and freedoms of every individual would have ruled in favour of a Canadian version of the Indianapolis Ordinance.