The MacKinnon-Dworkin Memory Hole

A review of In Harm's Way: The Pornography Civil Rights Hearings
Catharine A. MacKinnon & Andrea Dworkin, editors (Cambridge, MA: Harvard University Press, 1998)

This review first appeared in Jurist: The Law Professors' Network, Vol. 1, No. 4, July 1998.

by Wendy McElroy

In Harm's Way, edited by anti-pornography feminists Catharine A. MacKinnon and Andrea Dworkin, purports to chronicle accurately one of the most innovative legal and political strategies of the last decade. On this count and others, it fails.

From 1983 in Minneapolis to 1992 in Cambridge, Massachusetts, anti-pornography feminists attempted to bypass federal and constitutional hurdles to censoring pornography by lobbying for local ordinances. These laws declared pornography to be "sex discrimination" and, thus, not protected by the First Amendment. The proposed measures 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 also signed a contract and release, had been of age and was fully informed, had been paid, and had performed in the presence of witnesses.

Each 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, Massachusetts. In one sense, MacKinnon and Dworkin are extraordinarily well qualified to edit a book on "The Pornography Civil Rights Hearings." The two women had been hired by the city of Minneapolis in 1983 to draft the ordinance through which the city council hoped to regulate adult bookstores. This ordinance became the model for the ones that followed, and MacKinnon was intimately involved in arguing for each measure. However, neither MacKinnon nor Dworkin qualifies as an impartial observer.

Aware of the skepticism their bias would occasion, In Harm's Way declares its objectivity in several places. For example, 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 billing.

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 (my emphasis) -- 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, three other hearings that occurred with respect to the same proposed ordinance.

A gay rights activist, John Dentinger, and I were the only two people to oppose the ordinance at the first hearing on February 26 (unmentioned by the authors). We almost did not attend. John had called several times to find out the date of the hearing, and had asked to be notified by the clerk. After all, supporters who included MacKinnon, the director Peter Bogdonavich, and radical feminist lawyer Gloria Allred would surely be given time to arrange their schedules. Nevertheless, it was by chance alone that John learned of the meeting less than twenty-four hours before it occurred. The Board of Supervisors, who favored the measure, had not bothered to notify the opposition.

I accompanied John Dentinger to the Hall of Administration on February 26. When the ordinance came up on the agenda, floodlights flicked on as cameras prepared to roll. Aware of having to handle opposition in the media's eye, the Commissioners refrained from taking any precipitous step.

A second county hearing (also unmentioned by In Harm's Way) was scheduled for March 26. This time, however, 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. 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 testify, only then to be told to "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 "[n]otably, 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 was informed of the April 22 session.

On June 4, the L.A. Board of Supervisors held yet another hearing at which many women showed up to oppose the measure. Those who opposed the ordinance -- not those who supported it -- were taken to an outside hallway and told that only a few would be allowed to speak. Thanks to the assertiveness of Betty Brooks, each woman was ultimately allowed to testify. At the 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; among the opponents, John Dentinger almost caused a riot when he tore pages of "obscene material" out of a Bible.

None of this 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? What rules did the Board of Supervisors arbitrarily change at the last moment? Instead, there are blanket statements in the dual introductions, such as MacKinnon's bald-faced declaration that "[t]he opponents of the civil rights laws . . . did not openly defend pornography." I openly defended pornography. John openly defended pornography. MacKinnon requested and received copies of our transcribed testimony on the spot.

The Untold Story of the Minneapolis Ordinance

The Los Angeles hearings are the only ones of which I have personal knowledge. Consider, however, a written account of the original Minneapolis measure. In that city, the rapidly executed and debated ordinance found opponents unprepared. In The New Politics of Pornography (1989), Donald Downs describes the "path-breaking, 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." Downs outlines MacKinnon's "political tactics" and her shoddy treatment of the opposition at the first hearing, during which anti-pornography "activists exerted enormous, perhaps, unprecedented, pressure on the council" which led it to abandon the usual procedure by which it enacted 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 (December 1983) is the only one reported in the MacKinnon-Dworkin chronicle. The second ordinance of July 1984 was a more moderate measure enacted after opponents, who created a Task Force on Pornography, had been given time to enable a balanced debate. The second measure, which occasioned sixteen sessions rather than the three reported by MacKinnon-Dworkin, is not mentioned in In Harm's Way, perhaps because it was not promoted by anti-pornography activists. Nevertheless, a transcript of a press conference dated July 25, 1984 is provided, with the clear implication that it refers to the first ordinance passed, rather than the second. In the end, both ordinances were vetoed by the liberal Mayor Donald Fraser.

In Conclusion . . .

Ultimately, all the other ordinances failed as well. For 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 U.S. Court of Appeals for the Seventh Circuit unanimously struck down the Indianapolis ordinance in American Booksellers Association v. Hudnut (1985). The Supreme Court refused to grant cert.

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.