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The MacKinnon-Dworkin Memory Hole
March 13, 2001

In Harm's Way: The Pornography Civil Rights Hearings
ed. Catharine A. MacKinnon and Andrea Dworkin
Cambridge, Massachusetts, Harvard University Press, 1997

In Harm's Way: the Pornography Civil Rights Hearings, edited by anti-pornography feminists Catharine A. MacKinnon and Andrea Dworkin, purports to accurately chronicle one of the most innovative legal and political strategies of the last decade. From 1983 in Minneapolis to 1992 in Cambridge, Massachusetts, anti-pornography feminists attempted to by-pass federal and constitutional hurdles to censoring pornography by working to pass local ordinances that declared pornography to be "sex discrimination" and, thus, not protected by the First Amendment. Instead, pornography was declared to be a violation of civil rights of women.

The measures proposed by anti-pornography feminists permitted women who had been "coerced into pornography" or allegedly assaulted because of pornography to sue in civil court "the maker(s), seller(s), exhibitor(s), and/or distributor(s)...for damages and for an injunction." The definition of "coercion into pornography" was so broad, however, that consent was not deemed to be present even though a woman who had posed for a pornographer had signed a contract and release, had been of age and was fully informed, had been paid, and had performed in the presence of witnesses. In essence, the ordinance prohibited the possibility of consenting to pornography, taking the odd position that an adult woman's signature on a such a contract had no legal significance.

Each anti-pornography ordinance occasioned public hearings at which testimony for and against the measure could be presented to city officials. In Harm's Way is a self-declared "complete and accurate" record of four of these hearings: Minneapolis, Indianapolis, Los Angeles, and Cambridge, Massachussetts. In one sense, MacKinnon and Dworkin are extraordinarily well qualified to edit a book on the "The Pornography Civil Rights Hearings". The two women had been hired by the conservative city legislators of Minneapolis in 1983 to draft the original ordinance through which the council hoped to regulate adult bookstores. Their ordinance became the model for the ones that followed. The proceedings at Minneapolis -- carefully orchestrated so that only 'witnesses' that bolstered the ordinance were willingly included -- became the pattern for the hearings that followed. Morover, MacKinnon was intimately involved in arguing for each measure.

The same reasons that qualify MacKinnon and Dworkin to edit this book, however, also call into question the women's status as impartial observers. Aware of the skepticism their well-known political bias would occasion, the editors of In Harm's Way declare their objectivity in several places. For example, at the very beginning of the book, on a prominent page entitled "Note on Editing" the editors declare, "We intend these hearings to be as complete and accurate a record of what was said as possible." In Harm's Way does not even vaguely live up to this stated intention.

The Los Angeles Ordinance Saga

Consider the account of the Los Angeles hearing(s) in which I was personally involved. MacKinnon and Dworkin offer the transcript of a hearing -- calling it the hearing -- which took place on April 22, 1985 before the Los Angeles County Commission on the Status of Women. They neglect to present the details of, or even to mention the existence of, three other hearings that occurred. Without discussing these omitted hearings and the circumstances surrounding the proceedings as a whole, it is not possible to understand the story of the Los Angeles Ordinance.

A gay rights activist, John Dentinger and I were the only two people to oppose the ordinance at the first hearing on February 26th, although many people were clearly interested in voicing their opposition. Our attendance was almost a fluke. John had called City Hall several times to find out the date of the hearing, and each time he had asked to be notified by the clerk. After all, ordinance supporters who included MacKinnon (then a visiting professor at UCLA), the film director Peter Bogdonavich, and radical feminist lawyer Gloria Allred would surely be given time to arrange their hectic schedules. Nevertheless, it was by chance alone that John learned of the meeting less than 24 hours before it occurred. He happened to call and check with the clerk at the right time. The Board of Supervisors, who clearly favored the measure, had not bothered to notify the opposition.

I accompanied John to the Hall of Administration on February 26th. When the ordinance came up on the agenda, floodlights flicked on as cameras of various television news channels prepared to roll. It was high drama. Bogdanovich declared Playboy and Hugh Hefner to be murderers. Gloria Allred spoke on behalf of a woman seated beside her who was, ostensibly, too terrified to speak for herself but quite willing to be seen on the TV news. John and I delivered equally passionate speeches and endured questioning during which John became particularly insulted: I was the only one the Board of Supervisors quizzed about a non-existent connection to the porn industry. Aware of the camera's eye and having met with two unexpected opponents in whom the media took great interest, the Commissioners sent the ordinance for review.

A second county hearing (also unmentioned by In Harm's Way) was scheduled for March 26. This time, however, news of the former proceeding had acted as a red flag to opponents of the ordinance. A substantial number of women from FACT (Feminists Against Censorship Taskforce) appeared. They had not been informed of the first hearing and they intended to make up for being silenced. In the face of such concerted and public opposition, the supervisors arbitrarily and without notice refused to hear any public testimony. Instead, the ordinance was referred back to the Women's Commission for "revision". Meanwhile, Betty Brooks, the head of FACT, was so outraged that women had taken time off work to add speak out, as was their civil right, only to be told "go home," that she delivered an impassioned speech to the media in the corridor outside the Hall of Administration.

I did not attend the third hearing, reported as the hearing in In Harm's Way. Although In Harm's Way states that "Notably, Wendy McElroy was listed third of those who were to speak against the ordinance at the Los Angeles hearing, but she did not present herself to speak", neither John nor I were informed of the April 22nd session. Frankly, at that point, I was just as pleased to leave the microphone open for the other opponents whom I knew would show up.

On June 4, the L.A. Board of Supervisors held yet another hearing. Those who opposed the ordinance -- not those who supported it -- were taken into an outside hallway and told that only a few would be allowed to speak. Thanks to the assertiveness of Brooks each woman was ultimately allowed to testify. At this fourth hearing, Ramona Ripston, of the ACLU, commented on how the ordinance stripped women of rights; a Jewish woman spoke of Nazis who burned books; a member of the U.S. Prostitutes' Collective argued eloquently that the ordinance would create violence against sex workers; the list of opponents ran on with John almost causing a riot when he tore pages of 'obscene material' out of a Bible.

None of their testimony is in In Harm's Way. Nor is there any analysis of the surrounding politics -- for example, who was and was not notified of the April 22 hearing? What pivotal events happened in the hallway outside when the opponents, and the opponents alone, were being silenced? What rules did the Board of Supervisors arbitrarily change at the last moment to discourage those critical of the ordinance? Instead, the book contains blanket statements in the dual introductions, such as MacKinnon's bald-faced declaration "The opponents of the civil rights laws...did not openly defend pornography..." I openly defended pornography. John openly defended pornography. MacKinnon cannot be ignorant of our positions. She not only sat in the audience listening to our prepared remarks, she requested and received copies of our transcribed testimony from us at the scene.

The Untold Story of the Minneapolis Ordinance

The Los Angeles hearings are the only ones of which I have personal knowledge, but consider an account of the original Minneapolis measure. In that city, the rapidly executed and debated ordinance also found opponents unprepared and unnotified. In The New Politics of Pornography (1989), Donald Downs describes the "pathbreaking, orchestrated" first hearing in which "the council reportedly asked a prominent local evangelist to cancel his plan to testify...'because they didn't want his political spectrum identified as a supporter'." He outlines MacKinnon's "political tactics" and her shoddy treatment of the opposition at the first hearing during which "activists exerted enormous, perhaps, unprecedented, pressure on the council" which led it to abandon the usual established procedure by which it enacted other civil rights laws. The council also ignored pleas to delay and provide more discussion from the mayor, the Civil Rights Office, the Library Board, and the City Attorney's Office.

Although two versions of the ordinance were passed, the first one (December 1983) is the only one reported by the MacKinnon-Dworkin chronicle. The second ordinance of July 1984 was a more moderate measure that reflected such factors as giving opponents time to provide balanced debate: for example, by that point, a Task Force on Pornography had been created. In short, in the second ordinance the opponents had been given the same courtesy of time and notification that MacKinnon and Dworkin alone had received in the first one. The second measure, which occasioned sixteen sessions rather than the three reported by MacKinnon-Dworkin, is not mentioned in In Harm's Way. Nevertheless, the book offers the transcript of an anti-pornography press conference dated July 25, 1984 is provided. The transcript gives the clear and absolutely mistaken impression that it refers to the first ordinance passed, rather than to the second. The difference is key to understanding the comments presented. In the end, however, both ordinances were vetoed by the liberal Mayor Donald Fraser.

In Conclusion...

Ultimately, all the other ordinances failed as well. In the final measure reported by In Harm's Way -- that of Cambridge, Massachusetts -- the Women's Alliance Against Pornography managed to force a referendum which led to the measure's downfall. Thereafter, the Seventh District Court of Appeals unanimously upheld the American Booksellers Association v. Hudnut (1985) decision that found the Indianapolis ordinance to be unconstitutional. The Supreme Court refused to hear an appeal.

In Harm's Way claims "Not a word of testimony by opponents to the ordinances has been cut." Perhaps, in the light of such a careful selection of material, editing was not necessary. The book is not a "complete and accurate record." It is incomplete. It is inaccurate.

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