Defending Pornography in the Age of Safe Spaces: A Q&A With Nadine Strossen
Concerns about free speech undermining the equality and dignity of women helped usher in the now-fashionable equation between speech and violence, says famed civil liberties lawyer Nadine Strossen. Feminists have gone from arguing “that there is a causal connection” between discriminatory expression (a category in which many would include pornography) and violence to “denying that there is any distinction at all.”
I had the pleasure of interviewing her last week about Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights, her 1995 book that was reissued with a new preface last month, and why free speech is a cause that all feminists should support.
Now a professor at New York Law School and a senior fellow with the Foundation for Individual Rights and Expression (FIRE), Strossen headed up the American Civil Liberties Union (ACLU) from 1991 to 2008. She was also prominent in anti-censorship feminist action late last century, taking on the likes of Andrea Dworkin and Catharine MacKinnon over the legal status and cultural meaning of sexual expression.
You can read part one of our interview in last Monday’s Sex & Tech newsletter. Here’s part two.
Why do you think there’s been such a revival of these sorts of porn wars recently? Or did they never really go away?
Strossen: Throughout my lifetime and, much more importantly, I suspect throughout American history, sex and sexual expression have always been particularly feared and particularly demonized all across the ideological spectrum, albeit for somewhat different reasons. In Defending Pornography, at the beginning of the book, I cite some anthropologists and some cultural historians who comment on why that is, the puritanical heritage that we have in this country.
When it comes to controversial kinds of what the Supreme Court calls political speech, speech about public issues, we are more speech protective in many ways than countries that are otherwise comparable. We do protect so-called hate speech more than other countries, so-called extremism and disinformation. For all of the attacks on them here, they do continue to be protected in ways that they aren’t in other countries. Defamation, really strong criticism of public officials and public figures, is more strongly protected here. But in the realm of the sexual, we are the laughing stock of European countries and other comparable democracies because we continue to be so censorious. Even for all of the added speech protection that we’ve gotten from the Supreme Court in recent decades, we still have this completely court-created concept of illegal obscenity, which is completely excluded from any First Amendment protection at all. We continue to outlaw so-called “patently offensive” or “indecent” expressions on the broadcast media. I literally cannot say “fuck” on radio or TV when I’m describing the Supreme Court case in which that is a central word, the right to say “fuck the draft” during the Vietnam era.
I think it really never went away. It ebbs and flows and the particular factual context in which the suspicion towards sex changes somewhat. But, Liz, I would say a constant theme is very central to what we’re seeing now, which is the supposed danger, the assumed danger to children of any sexually-oriented expression.
You write about how porn doesn’t really have a concrete definition, and that allows people to twist it to being everything they don’t like—which, today, we see that with books and drag shows and anything having to do with queer culture. Is this something new or was this the case when you first wrote the book, too?
It was also the case when I wrote the book, and even earlier. I recall, from my own childhood, attacks on comic books and fears about even library books and bookstores. When I became older and read Supreme Court decisions, I could see that in the ’50s, the Supreme Court was striking down laws that were banning sexually oriented books of any sort—famous works, classic works of literature—from libraries and bookstores on the rationale that children would be damaged somehow by having access to these books or even seeing them in the windows of bookstores.
There was a famous case from [1948], Winters v. New York. Then there was another one in the early ’60s, the Ginsberg case, about so-called “girlie magazines” being sold in convenience stores. In all these cases, including in the most recent case in which the Supreme Court reaffirmed the completely court-manufactured obscenity exception—it’s an old decision that goes back to 1973, but the court hasn’t reexamined the issue since then. In every single case, the court assumes and presumes, acknowledging that there is no evidence, that sexual expression—when I say sexual expression, I mean just being exposed to it—necessarily has some dangerous consequences, especially for children. I think it’s very striking. The court says there’s no evidence but we can just take judicial notice. That means when something is so obvious that you don’t need evidence, like the sun rises in the East, and it’s just put on that plane, which would be completely unacceptable with respect to any other kind of speech. The government has the burden to show that it is actually harmful and that the only way to reduce the harm is through restricting the expression. It’s also just an unquestioned assumption that children in particular will be harmed.
Most recently where this has come up—some of the latest efforts where the Supreme Court considered laws that were restricting expression in various new media on the rationale of harm to children….When [the internet] first jumps onto the political and public radar screen and press radar screen, the very first impulse is to censor sexual expression, number one, for the sake of protecting children, number two. So the Communications Decency Act just sails through Congress [in 1996] with almost nobody on either side of the aisle vo
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