• printer friendly
• mail this article
• iPod format
• digg

Tuesday, April 30, 1996

Individual and group rights clash in inevitable, but rectifiable, conflict

The situation of women is not really like anything else.

­ Catherine MacKinnon, "Feminism Unmodified"

Last Friday my significant other ­ let's call him Paul ­ went on a weekend excursion with the boys. It was a bachelor party, so you can guess their destination: Las Vegas. Decoded, that means lots of betting, lots of booze and probably a porno flick or two. Which is okay, I guess, to the extent that these trips are a part of American culture ­ an institution, a tradition, a masculine rite (right?) of passage, if you will.

Now, I'm not the type to put leashes on people, probably because I insist on so much freedom for myself. So my attitude as he drove off with his buddies was: "Have fun, don't lose too much, see ya later, bye!" Yet as I stood there smiling and waving goodbye, I realized how uncomfortable I have become with one element of that tradition: the pornography.

But not because I don't want Paul to watch it. He's an adult; he can do as he pleases. And besides, I'm sure it can be pretty provocative stuff ­ the perfect elixir to help free those men from their boring weekday inhibitions. Sounds fun, huh? Well, not exactly, for as we all know, what is good for the goose is not always good for the gander.

Which leads me, albeit by way of silly cliche, to the source of my discomfort which is perhaps best expressed by the contemporary feminist critique of pornography, which contends that pornography is an institution of gender inequality which not only causes discreet acts of sexual violence against individual women on a one-at-a-time basis, but against all women as members of a group. That their critique has been both controversial and relatively ineffective is hardly surprising given the fact that pornography is a multi-billion dollar, male-driven industry which caters mostly to men in what is ­ and always has been ­ a man's world.

But the forces of patriarchy and capitalism are only part of the problem, for other equally complex ideological issues arise when the specific demands of feminism collide with the underlying principles of our nation's system of freedom of expression. Or so says Professor Robert Post of UC Berkeley's Boalt Hall School of Law who argues, in an important California Law Review article, that it is out of this tension that a crucial constitutional issue emerges: What type of values do we want the First Amendment to protect?

The way we answer that question is important, for it helps reveal what is at stake in the feminist campaign. To show us why this is so, Post examines three separate means by which a legal order might be structured in a culturally diverse society such as ours ­ assimilationism, which seeks social uniformity by imposing on all individuals the values of a dominant culture; pluralism, which promotes social diversity by protecting the values of competing cultural groups; and individualism, which exalts the rights of individuals over the values of any one cultural group.

What do these definitions have to do with the feminist's attempt to suppress pornography? Everything, if you agree, as I do, with Professor Post, who contends that part of the reason why the feminist critique is so controversial is because it represents a pluralist challenge (which emphasizes the rights of one group) to the First Amendment's historic commitment to individualism (which stresses the rights of the individual).

The feminist demand that the law acknowledge women's outrage over the damage inflicted by pornography is not problematic in and of itself or because it is an illogical request. Rather, the problem, as Professor Post sees it, arises because this outrage stems from the "characteristics of a specific group" (read: women) and not from a "general audience composed of undifferentiated individuals."

The question thus becomes: What type of society do we want to use the First Amendment to create? Do we want to use it to construct a society that places a premium on the rights of competing cultural groups or do we want to use it to create a society that values the rights of the individual over those of any one particular group?

To frame the issue in a more personal way, do I want the First Amendment to protect the rights of all women (including myself) to be free from the injurious effects of pornography, or do I want it to protect my own personal right to view pornography if I so desire? Both rights are important. Both deserve protection. But the feminists' position does not allow us to have it both ways. Theirs is a zero sum game; only one side can win ­ pluralism or individualism. And therein lies the dilemma.

But that is not the only problem, for other difficulties arise when one considers the evidence feminists use to support their argument. The contention that pornography causes discreet acts of sexual violence against individual women stands up fine theoretically until one realizes that the strength of this assertion depends entirely upon the empirical evidence used to support it.

Though Post is careful to point out that such evidence may show that pornography contributed to "attitudinal changes" in men which in turn made them more likely to countenance crimes of sexual violence against women, he predicts that the evidence presently available is not likely to establish direct causation. To withstand constitutional scrutiny, the evidence must show that the "relationship between such attitudinal changes and subsequent behavior constitutes a sufficiently close causal nexus as to justify the regulation of pornography." That's a difficult standard to meet.

Which is actually a good thing, considering the enormous powers of censorship the government would inherit if it were given the authority to criminalize any speech that tended to induce in a group unfavorable attitudinal changes in relation to future conduct. Such a result, as Professor Post duly reminds us, is "profoundly at odds with the basic first amendment principle that seeks to circumscribe broad government discretion to curtail speech."

So where does that leave us? At an interpretive impasse, I guess. But Post's analysis was not meant to provide a ready-made solution to the problem. Rather, it was intended to "propose a tentative framework" within which feminists might try to further refine their argument.

Professor Post concludes that the ultimate success of the feminists' quest to suppress pornography depends upon whether they can articulate a convincing vision of the First Amendment which is consistent with pluralist values. A rigorous prescription, to be sure, but one certainly well worth pursuing.

As for Paul ... well, he came home Sunday night, looking haggard, bedraggled and worn. Apparently, the bachelors chose not to watch the pornos. "Too busy," he said, "just golfing and gambling." It was a small concession, I know, but a concession nonetheless, and I seized it immediately as a sign of things to come. Porno-free bachelor parties today; tomorrow, the world.

Evans is an 1989 alumna of UCLA and graduate student in history at UC Berkeley, and works in the UCLA history department this quarter. Her column appears on alternate Wednesdays.