Pornography and Civil Rights: A New Day for Women's Equality

because pornography expresses a viewpoint about women, it

does not mat er if it is also coerced, assaultive, or discriminatory. Because a picture of a coerced woman might be artistic or scientific or educational, she is told she should have no action

for coercion that reaches the pictures. Because films of women

being raped and enjoying it express a point of view about

women and sex, the fact that they cause assaults of other

women—conceded by the court—is not legally important.

The Ordinance, a law against sex-based discrimination, was

thus itself held to be discrimination on the basis of “viewpoint. ” This was apparently because the Ordinance takes a stand for sex equality, not against it. This was because the

Ordinance is not neutral on the subject of sex-based exploitation, abuse, and discrimination. Every practice expresses a point of view; acts express ideas. Yet acts and practices are legally restricted anyway, and they do not have to be proven expressionless first. Segregation expresses the view that Blacks are inferior to whites and should be kept separate from them.

Segregation is often enforced with pure speech, like signs that

read “Whites Only. ” Segregation is not therefore protected

speech. Such a sign is not a defense to a civil-rights violation

but evidence of it. Laws against segregation are not discrimination on the basis of viewpoint, although they absolutely prohibit the view that Blacks should not mix with whites from being expressed in this way. This is true even though deinstitutionalizing segregation as a practice in the world does a great deal to undermine the point of view it expresses.

Indeed, most discrimination revolves around words, words

that are clear vehicles for an ideology of exclusion or access

Civil Rights and Speech

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and use—words like “You’re fired, we have enough of your

kind around here, ” “Sleep with me and I’l give you an A, ” or

“Constituent interests dictate that the understudy to my administrative assistant be a man. ” Discrimination in employment or housing or through sexual harassment could not be addressed by law, far less be proven to have happened, if their

speech elements rendered the entire cycle of abuse protected

because the words so central to their actualization express a

point of view.

Lynching expresses a clear point of view about Blacks, one

it is difficult to express as effectively any other way. One point

of lynching is that other Blacks see the body. The idea expressed by the body being hung on view in public is that al Blacks belong in a subordinate position and should stay there

or they wil be hor ibly brutalized, maimed, and murdered

like this one was. Another point of lynching is that whites see

the body. Its display teaches them that they are superior and

this was done for them. Photographs were sometimes taken of

lynchings and made available for 50 cents apiece. Compare

such a photograph with a 1984 Penthouse spread in which

Asian women were bound, trussed, and hung from trees. One

cannot tell if they are dead or alive. In both cases, individuals

are hung from trees; often the genitals were displayed. In both

cases, they are people of color. In both cases, sexual humiliation is involved. But because the victim of the lynching is a man, the photograph is seen to document an atrocity against

him and an entire people, while, because the victim of the pornography is a woman, it is considered entertainment and experienced as sex and called speech and protected as a constitutional right.

If lynchings were done in order to make photographs, on a

ten-billion-dollar-a-year scale, would that make them protected speech? The issue here is not whether the acts of lynching are illegal or not. (As with the acts surrounding pornography, on paper they mostly were illegal, while in reality they mostly were not—not until a specific law, a civil-rights law, was

passed against them. ) The issue is also not whether lynchings