Defending Pornography

THE OPEN MIND
Host: Richard D. Heffner
Guest: Nadine Strossen
Title: “Defending Pornography”
VTR: 5/5/95

I’m Richard Heffner, your host on The Open Mind. And the first to concede that it’s not fashionable these days to embrace the “L” word – L for “Liberal” – or to pay one’s respects to the American Civil Liberties Union. Well, I do both happily, however. Indeed, back many, many years ago I served for a while on the National Board of Directors of the ACLU. So those are my credentials, and my possible conflict of interest disclaimer as I introduce as today’s Open Mind guest, Nadine Strossen, law professor, president of the ACLU, and author now of Scribner’s Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. Of course, my take on Ms. Strossen’s book becomes the first question: Why does reading it make me feel that its more descriptive title would be “Embracing Pornography”, and what in the world does even defending pornography have to do with the fight for women’s rights? Is that an unfair question, Nadine?

STROSSEN: Not at all. I’m delighted to answer it. And the reason why I think it’s not an unfair question is the reason I wrote the book. Too many people have come to believe lately that one has to choose between freedom of speech or sexual expression, or pornography, on the one hand, and women’s rights on the other hand. Because some very prominent, very influential feminists have persuaded very many people that pornography is antithetical to women’s rights. I wrote my book on behalf of another, but I think less well known, segment of the Women’s Movement who say, “Hey, wait a minute. Precisely because of our commitment to women’s rights, women’s freedom, women’s safety, women’s dignity, we oppose censoring pornography because we think censorship would do more harm than good to all of those causes on behalf of women.”

HEFFNER: Why would embracing pornography, on the other hand, which your book seems to do? And you stop me if I’m wrong about its embracement.

STROSSEN: I’m not sure what you mean by “embracement,” and let me tell you why I use the term “defending” instead. I am a lawyer and a law professor, and to me “defense” connotes courtrooms and advocacy. And I am basically defending individual freedom of choice with respect to pornography or sexual expression, and that is all that the dictionary term “pornography” means: words or pictures that are sexually oriented, sexually provocative, sexually exciting. I defend the right of every individual, man or woman, to choose what he or she will see or not see in the realm of sexual expression as well as in the realm of all other expression. And I certainly reject the notion that women are completely incapable of making free choices in the realm of sexual expression, which unfortunately is the essence of the view that’s espoused by the anti-pornography, pro-censorship wing of feminists.

HEFFNER: Isn’t it fair to say that those who do take that point of view are saying that women are victimized by pornography?

STROSSEN: Correct. And I certainly do think that individuals can be victimized by – now I’m talking about those who are involved in the production of pornography, the models who perform for pornographic pictures or movies, as is true in every business, there can be victimization, there can be abuse, there can be exploitation – but where I part company with those who advocate censorship is their view that it is always exploitation, it is always victimizing. Indeed, they say women, like children, are incapable of freely, voluntarily consenting to pose for pornography. I think that is insulting and demeaning to women and a setback to our rights.

HEFFNER: Yes, but, Nadine, suppose you left that argument and accepted what it is you say, that women are perfectly capable of making their decisions to participate or not to participate, and when they are, when force is exercised upon them, let’s say, in those instances, that is a legal matter, the law can be brought in.

STROSSEN: Absolutely. Absolutely. And I and the American Civil Liberties Union have always called for vigorous enforcement of existing laws, both criminal laws and civil laws, that already make it illegal not only to use overt force but even covert forms of force such as coercion or duress. That is already against the law, and the law should be vigorously enforced. We simply refuse to take the next step that is taken by those who advocate censorship, which is that even if a woman thinks that she is voluntarily choosing to participate in the pornography industry, she is really being victimized, she is really a victim of false consciousness, and we have to, so to speak, protect her against herself. To me, that is, as I say, a setback to women’s equality and dignity.

HEFFNER: All right, protecting women against themselves, or protecting men against themselves.

STROSSEN: Paternalism.

HEFFNER: Paternalism.

STROSSEN: Or maternalism, in this case.

HEFFNER: We’ll agree that we want to protect children.

STROSSEN: Correct. Absolutely.

HEFFNER: All right.

STROSSEN: And my book is defending freedom for mature, consenting adults. Not for adults who are coerced, and not for immature people or children.

HEFFNER: All right, but then let’s move to the other side, literally the other side of the counter, where the point is made that women generally can be too easily victimized by what the pornographers lead to, in what they do and what they distribute. Strike for a moment a concern about those who participate in the pictures.

STROSSEN: Right.

HEFFNER: Let’s just say they can make their own choices. What do you do, though, intellectually, about the statement that women generally, and perhaps society generally, is/are victimized by pornography?

STROSSEN: Well, I absolutely reject that, as do the many voices including scientific studies that I cite in my book. There is no evidence of harm to women or to society from the viewing, even the massive viewing of pornography. As those who advocate censorship are the quickest to point out, we do live in a society where the consumption of pornography is enormous and growing. And interestingly enough, women are themselves a growing segment of the market for consuming pornography. Many people say that the recent rapid spread of the VCR throughout our society was in response to people’s desire to see more and more sexually explicit materials. And we now know that the same thing is happening on the internet and in cyberspace. Human beings have an abiding and understandable curiosity for expression, words and pictures, about sexuality. And as I keep saying, that is all that pornography is. It can often serve a very positive purpose, such as giving information about sex, about sexually transmitted diseases, about contraception, about reproduction. And my book gives many examples of important works of art and information and literature that have been censored or threatened with censorship under the stigmatizing term “pornography,” or sometimes “obscenity” or “sexual harassment.” But once we allow other people to take away from individual adults decisions as to what we will see or read or not see or read in the realm of sexuality, then no sexual expression is going to be safe, including this very valuable scientific and artistic expression.

HEFFNER: Let me ask whether there is any place at which you draw a line.

STROSSEN: Well, I’ve already mentioned one line, Dick, and that is the actual abuse or exploitation of an actual human being.

HEFFNER: Understandable.

STROSSEN: I’ve mentioned another line, which is below an age where one is incapable of informed, mature, decision making or consent. But once we are talking about adults and expression, I think the only line that can be drawn is the one that the Supreme Court has drawn with respect to nonsexual expression. Essentially that expression can be censored if, but only if, one can show a clear and present danger of actual or imminent harm. No more speculative, no more attenuated connection to possible harm is enough to justify censoring expression. And that is where the evidence is lacking in terms of the asserted harm from exposure to pornography. No study has been able to show a clear and present danger that it will lead to discrimination or violence against women or any other kind of societal harm.

HEFFNER: How do you respond, then, to those of us – and I put it that way because I’m a firm believer that a clear and present danger is presented to us by the pornography of violence – how do you respond to those of us who feel, not that action on the screen, that violence in some other setting necessarily begets violence in real life, but that we feel that a good society is damaged by pornographic violence, by the violence of pornography? Now, what are you doing to do with us?

STROSSEN: I’m going to say to you what the United States Supreme Court has long said, which is if you disagree with or are offended by or think that the message that’s being conveyed by speech is damaging to society in a more subtle, indirect way than a clear and present danger, the appropriate response is not to suppress that expression, but counter speech, to criticize it, to raise your own voice, to create your own images that you think are consistent with your view of a good society.

HEFFNER: But, now, you’ve said that, and you’ve been critical of the court, and one of the things in Defending Pornography that interests me is that when the court’s record is one that you do want to wrap yourself around, you pay your tribute to the court. But then you say that the court, for some reason in terms of sexual matters, has not been the upholder of the rights that you would have it uphold.

STROSSEN: Exactly.

HEFFNER: Now, what do you do, how can you logically use the court in one way, and then reject that same court’s attitude toward sexuality on the other hand?

STROSSEN: Oh, because for me, as a civil libertarian, and as a Constitutional law scholar and professor, the fact that the Supreme Court makes a decision is not a reason to conclude that the reason is right. I have my own touchstones of Constitutional interpretation. There are some justices that I think are more consistently correct than others are, but the Supreme Court, as we know, has upheld racial apartheid, has upheld slavery. So the mere fact that, you know, as one Supreme Court justice said, “We’re not infallible because we’re right; we’re right…” I can’t remember exactly how he said it. But the point was their decisions are treated as correctly only because they are unreviewable. I can review them as an independent critic. And the court itself has never been able to come up with a reason for not extending full Constitutional protection to sexual expression. The last time it addressed that issue it was split as closely as it possibly can be, five to four. And I think the only candid assessment we have ever gotten in this area was from former Supreme Court Justice Potter Stewart when he said “I can’t define the hard core pornography that should not receive Constitution protection, but I know it when I see it.”

HEFFNER: And obviously he saw it.

STROSSEN: He saw it. But no two justices, let alone no two human beings, will agree on what the “it” is. Which is precisely why I think each individual has to make that decision, and we cannot hand it over, either to the Supreme Court or to the local government or to feminist censors or to right wing censors, or to anybody other than our own judgment and determination. And I don’t think you should be forced to see anything you don’t want to see, but you should not be able to deprive me of anything I do want to see.

HEFFNER: But I believe – and you want to say “Prove it” – that a clear and present danger is presented to our society in general by the pornography of violence.

STROSSEN: Right. And that’s very important that you put it that way, because it is true that with respect to virtually every kind of expression, the United States Supreme Court has rightly said the burden of proof is on those who want to suppress it. And those who are advocating censorship of sexual expression are trying to reverse the burden of proof. They’re saying, “Disprove my belief, your belief, that it does harm.” If we go down that road, we’re not going to have any freedom of speech in this society. I can’t disprove that what I’m saying or what you’re saying is doing some potential harm out there in the watching public.

HEFFNER: May I just ask you, just between the two of us, do you believe that the pornography of violence is a very negative influence in American life?

STROSSEN: That’s too broad a generalization. Because I think that no two people react to the same image the same way. Let me give you one example from my book, Dick, which is to me the most brutal, graphic example of sexually explicit violence that I have ever seen. It is the gang rape scene in the movie The Accused, starring Jodie Foster. That’s pornographic by everybody’s definition. It’s violent by everybody’s definition. And I saw that not as exalting violence, but having exactly the opposite intent, and, in my case, and the case of many other viewers with whom I discussed it, exactly the opposite effect: rousing people’s consciousness and concern and abhorrence about the ongoing tragedies of rape and violence against women in our society, and mobilizing them to fight against it.

HEFFNER: Well, I can tell you as the chairman at that time of the Film Rating Board, that that was exactly, precisely, in quite so many words, the position we took. That was just exactly the best possible statement. I wish you had been around to defend us at the time.

STROSSEN: (Laughter)

HEFFNER: But I come back again to ask you the personal question whether you as an individual – I’m not asking you now as the president of the ACLU –

STROSSEN: Uh huh. Right.

HEFFNER: – whether you think that the pornography of violence, as I care to call it …

STROSSEN: Right.

HEFFNER: … choose to call it, or let’s just say “violence” …

STROSSEN: And I’m telling you quite honestly that I as an individual human being cannot make such a broad generalization. Because I think …

HEFFNER: What do you think?

STROSSEN: What I think is that it all depends on what is in the mind of the viewer. To me, violent images I associate mostly with denunciations of violence. You know, to take the example … You look very puzzled.

HEFFNER: Yeah.

STROSSEN: The example that I think of that was shown over and over and over again on television all over the world was the videotaped beating of Rodney King by the Los Angeles Police Department. We know it was gratuitous and excessive violence. That’s what the jury told us. That’s what the consensus of society was. I thought it was a wonderful pro-human rights image to be showing, not because it celebrated that violence, but because it had exactly the opposite impact on the part of most viewers with whom I discussed it. And namely, that is to make them aware of the real violence that exists out there in the world, and understand the necessity of curbing that kind of brutality and discriminatory brutality.

HEFFNER: Of course, most people, when they talk about violence in the media are talking not about documentarian kinds of violence, not that which is documentary …

STROSSEN: Well, see, now we’re starting to make distinctions. That’s why I said I wouldn’t make such a broad generalization as you did, sweeping together all violence or all sexual violence.

HEFFNER: Then where and when would you draw the line?

STROSSEN: I do not think we can come up with objective criteria. This is basically my analysis, Dick. Number one, I don’t think that anybody would want to suppress all violence, because we can all come up with examples – I hope I have given a couple – that most listeners will say, “Those are good examples of violent images that we would not want to suppress.”

HEFFNER: So that’s your rational, reasonable position.

STROSSEN: So then the fallback is, okay, so then we’re only going to restrict inappropriate violence or gratuitous violence or excessive violence. Those are necessarily very subjective terms. And I think that that is precisely why we have to leave it to every individual to decide what he or she considers to be inappropriate, gratuitous, or otherwise unpleasant.

HEFFNER: Are there areas in life where you find yourself able to say, “For me, Nadine Strossen, this is …

STROSSEN: Yes. Let me give you an example.

HEFFNER: All right.

STROSSEN: Well, first of all, when I watch movies, as my husband can tell you, I will involuntarily, my hands are censoring what my eyes can see because I start to see blood and I just literally have a visceral reaction against it. I can’t look at the screen. Recently I chose not to even get to the point of reading something. It involved a case where I absolutely defend the freedom of speech that’s involved. A student at the University of Michigan named Jake Baker had posted on the internet a sexually violent torture and rape fantasy. And I think there are very serious questions of free speech involved in that case. I was curious to read the story. My assistant read it and said it was the most disgusting, revolting, awful thing he had ever read. And I decided, “I don’t need to read it. I don’t want to.”

HEFFNER: But you would defend it.

STROSSEN: I would defend the right of somebody to write it as a sick and violent fantasy. And interestingly enough, he warned his readers in advance. He said, “This is a sick and violent fantasy.” I defend his right to read it, to write it, I defend the choice of other people to read it, and I defend my choice not to read it. But I would absolutely oppose somebody taking a majority poll and saying, you know, “If 51 percent of the people or more don’t want to read it, then nobody’s going to have that choice.”

HEFFNER: Nadine, how would you protect children? Because at the beginning of this program you were willing to protect children.

STROSSEN: I certainly am.

HEFFNER: How do you protect children from that on the internet?

STROSSEN: Actually, I think it’s the parents’ responsibility to decide what their children will see …

HEFFNER: Parents aren’t home.

STROSSEN: … and I think it is a useful function for government and industry to facilitate parental choice.

HEFFNER: Parents aren’t home, Nadine.

STROSSEN: As technology is developing, it is becoming easier and easier to provide more and more sophisticated blocking capabilities whereby parents can program, whether it be the TV, whether it be the computer, to make sure that their children will simply not have any access to whatever materials those parents think their children should not have any access to. And that is the perfect solution. It is facilitating individual choice within each family unit. It is respectful of the fact that most mothers, as well as most fathers, now work. And what it is accomplishing is individual choice so that some children will not see certain things their parents don’t want them to see without relegating all of us to the same standard that is appropriate for those children.

HEFFNER: Now, again, just between the two of us, what do we do? And this is not Newt Gingrich’s mother I’m talking about. What do we do about the fact, the phenomenon in our society that by and large, we can identify large, large, large groups of people who perhaps are not as sophisticated as you and I who wouldn’t take the time or the trouble, unfortunately, to make use of the technological capacity we have to separate children from what you saw and did not see but would defend on the internet?

STROSSEN: Well, we have to recognize the social reality, and we have to take a constructive response, which is not censorship, but it’s education. It’s more information. It’s reaching out to those people with every kind of self help mechanism available. What we cannot do is reduce all of society to the lowest common denominator both in terms of sophistication, interest, and time, and in terms of, you know, most restrictive standards for what will be allowed in their households. And the Supreme Court has said that, Dick, in the context of books, many years ago. They said …

HEFFNER: But you don’t think the Supreme Court is always right. Why are you bringing it in?

STROSSEN: I don’t. But this … Well, because they are often right with respect to speech, and I wouldn’t cite them if they weren’t. Okay?

HEFFNER: You mean “only.”

STROSSEN: So I’ll just say the Supreme Court happened to do something which I happen to think is right …

HEFFNER: Fair.

STROSSEN: … and they said that adults in our society cannot be reduced to seeing only that which is fit for children. And I think that was a correct decision, which is why I’m citing it.
HEFFNER: Do you think we have a problem here?

STROSSEN: In what particular …

HEFFNER: In terms of what children see and hear and, if you will, some people would say, see and hear and do?

STROSSEN: Well, I certainly think that, from analyses, content analyses I’ve read of the media, that there is an over emphasis, for example, on crime and stories about crime in the local news and in the national news. And I also know the statistic about how many hours a day the average child is watching TV. That does give me a great deal of concern as a civil libertarian, because I think we have a national climate that has an exaggerated fear of crime. Obviously, any crime is too much, and we have too much. But the public perception about how much crime there is, I think, is exaggerated, and I think it’s driving all kinds of legislation that is very repressive.

HEFFNER: If you think that news presentation of violence again and again and again leads to an over concern, and to perhaps political reactions as a result of that, and I gather that’s what you’re saying …

STROSSEN: It is.

HEFFNER: … do you think that such depictions, particularly in fiction, in entertainment, so called, lead, in turn, to social action or, I should say, antisocial action? If you think there’s power in the one, is there equal power in the other?

STROSSEN: Absolutely. And I have to be very precise here. My saying that I don’t think there is any kind of, you know, imminent causal connection between an image that you see and action as a human being does not mean that I do not see a more indirect connection. And I, to strike the double negatives, I would be naïve to say that we are not influenced in some complex way by what we see and what we read. Which is precisely why I defend freedom of expression, not only on the part of those who are purveying their views through the media, but for those of us who can criticize what we see and say, make statements such as, “Not that we are going to restrict the amount of violence on TV, but we’re going to discuss it, we’re going to criticize it, we’re going to urge those who are in positions of power in the media to exercise that power responsibly, attentive to all of the long range effects that might result of their use of the airwaves,” for example. And I think Bill Clinton did that very well, I must say, when he criticized some extremist talk show hosts for advocating violence and creating a climate of violence. I did not understand him in any way, shape or form to be advocating censorship, but just for the responsible exercise of freedom of speech, including exactly what he was doing, which was criticizing. Not censorship, but counter speech. Not less speech, but more speech.

HEFFNER: At that point – we have 30, 40 seconds left – I wonder if you’d stay where you are, because mentioning the president, and talking about speech of a kind that he deplored, did not suggest censorship …
STROSSEN: No.

HEFFNER: … suggested responsible reaction too, I’d like to discuss that with you. You willing to stay for another go round?

STROSSEN: Oh, of course. I’d love to.

HEFFNER: Nadine Strossen, I’m delighted to have you here today. Stay where you are. And I’d also like to talk with you about the business of, maybe not so clear and not so present danger. A little fuzzy, and in the future, but danger anyway, and how you would react to it.

Thanks so much for joining me today.

STROSSEN: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time as well. And if you’d like to share your thoughts about our program today, please write: The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150. For transcripts, send $4 in check or money order.

Meanwhile, as another old friend used to say, “Good night and good luck.”