Dworkin Gets Mack’d Out An Analysis of Ronald Dworkin and Catherine Mackinnon’s Perspectives on Modern (Obscene) Pornography
In the coming paragraphs, I will prove that Ronald Dworkin’s criticisms and critiques of Catherine Mackinnon’s views towards pornography and society are largely unfounded and immaterial, and that government intervention via legislation is required in the protection of women’s interests.
I will begin by explaining Catherine Mackinnon’s opinion and support for the Butler decision and thereafter, I will discuss Ronald Dworkin’s critique of it. After outlining their positions, I will proceed to highlight the areas of incommensurability between their arguments. My perspective of Dworkin’s comments about the harm pornography causes and the flawed pretenses upon which he reaches his conclusion will be provided, particularly his failure to recognize the true nature of the inequality as described by Mackinnon.
Ultimately, I will conclude that Dworkin’s comments towards pornography and a negative approach towards state-granted freedoms is invalid and unsubstantiated. Catharine Mackinnon Catherine Mackinnon, in her piece called “Only Words” articulates why government intervention is required in order to prohibit the continued subordination of women as witnessed in the American Booksellers v Hudnut and the R v Butler cases. Mackinnon makes explicit reference to the R v Butler case, wherein the Canadian courts recognized that the undue exploitation of sex and pornography inflicts harm towards women. Appendix A). Commenting primarily on the second test identified in R v Butler , the “Degradation and Dehumanization test”, she articulates that obscene pornographic material, particularly pornographic material lacking artistic merit (i. e. Pornographic material which depicts the subordination of women), causes great harm to the female in society. [1] Mackinnon finds that American law fails to recognize the harm inflicted by pornographic material on women.
This is extremely surprising, particularly because laws protecting children from sexual exploitation recognize the harm these actions inflict. She comments that unlike obscene pornographic material of women, which is considered the “speech of a sexually dissident minority”, a different standard is applied when it comes to children. Mackinnon concludes that the court’s inability to protect the subordination of women is rooted in its failure to understand the inequality of power that exists between men and women. 2] While a small battle was won with the instantiation of the Indianapolis Ordinates, a document designed to prohibit hard core pornography in the Unites Sates, the war was soon lost when the Court of Appeals found the Indianapolis Ordinates unconstitutional when challenged in the case American Booksellers v Hudnut. The court recognized the harm obscene pornographic material inflicted on women, stating subordination is “something pornography does, not something it says” and that “depictions of subordination tend to perpetuate subordination”. 3] Nonetheless, in what some would consider flawed logic[4], Judge Easterbrook determined that due to the animated debate on pornographic material, it is considered an extremely valuable form of expression and therefore, should not be prohibited. In other words, the more damage the speech inflicts, the more value it has to society and any effort to suppress this form of expression must meet a higher burden of proof. Judge Easterbrook concluded that finding the IO constitutional would be advocating a specific point of view and “restricting the marketplace of ideas”.
While Easterbrook’s case may have had merit within the framework of American jurisprudence, he failed to note as Mackinnon states quite eloquently, that “women were being transformed into ideas; [and] sexual traffic … was protected as if it were discussion”. [5] Mackinnon continues by contrasting the American system of jurisprudence towards pornography cases with that of the Canadian system, where similar cases resulted in far different outcomes. She comments that the Canadian Charter of Rights and Freedoms provides not only formative but substantial protection from inequalities.
Unlike the U. S. , Mackinnon comments that the Canadian system seeks to alter the poor treatment of disadvantaged groups and amend their status. [6] The Court utilized this approach in the case of R v. Butler where it recognized that the “humiliation, degradation, and subordination of women – was harm to society as a whole” as it led to an inequality. [7] In other words, the court recognized the social and communal harm imposed by pornography, that is to say it recognized the “context” under which the pornography occurred.
Recognizing not only the harm from pornography but more importantly the inequality that it perpetuates, the Canadian courts ruled in an opposite manner to their U. S counterparts. At one point, Mackinnon wonders what warrants the restriction of freedom of speech in the US. One judge once wrote, “fear of serious injury cannot alone justify the suppression of free speech”. She points out that it is this exact fear – a fear of serious injury – which justifies the government’s prohibition on child pornography. [8] She continues that it is the plight of the abused, which is frequently trivialized in the United States.
Those who are assaulted are told to “accept the freedom of your abusers” and that “you are not really being hurt”. [9] But one of the most important differences she points to relates to the concepts of neutrality and equality. She comments that in Canada there is no provision which requires the government remain neutral, but to the contrary, ensuring equality is a state value in Canada. [10] Ronald Dworkin In “Two Concepts of Liberty”, Ronald Dworkin takes a more hard-line approach with respect to freedom of speech absolutism as is commonly witnessed in the United States.
Dworkin contends that few if any situations require and warrant a limitation on the “marketplace of ideas”, a fact which separates the Red, White and Blue from most other democracies. [11] Dworkin draws on the ideas of Isaiah Berlin and argues that limiting one’s free speech is a direct infringement on negative liberties that can derail society and principles under which it stands. Berlin theorized on the powerful impact of ideas on social life and believed in their free distribution in order to promote a healthy society. 12] Dworkin uses the issue of obscene pornographic material as a forum to present his conception of the way a free and democratic society ought to encourage free speech. Dworkin contends that negative liberty, when understood in the correct context and framework will lead to the conclusion of the permissibility of pornographic material. The only grounds for the prohibition of certain speech, is speech which is considered “directly dangerous”, not because it presents a message which is disliked by the majority. 13] In combating the view contended by many who favour the Indianapolis Ordinates, Dworkin believes it is necessary to separate and recognize the various harms as contended by many feminist groups. He says the first harm frequently argued by the opposition is that hard-core pornographic material results in a causal increase in violent assault against women. He says the empirical evidence is not persuasive or conclusive and the high burden of proof required to limit an individual’s liberty cannot be met. 14] Dworkin also disputes Mackinnon’s claim that pornography is responsible for the general subordination of women in society and perpetuates inequality in society. He says certain forms of radio are far more influential in lowering the status of women. He also points to TV commercials and soap operas, which often present women in a demeaning way. He contends the concept of the general subordination of women has its own problems as it implies that women are “not their own masters”;[15] that is to say they in no way control others’ perceptions of themselves.
Dworkin continues on to suggest that even if one demonstrates a direct link between pornography and the subordination of women, one could still not prohibit the offensive material. [16] Dworkin states that even if pornography was harmful in that it encouraged the subordination of women in society, “the point of free speech is precisely to allow ideas to have whatever consequences follow from their dissemination… the government must leave to the people the evaluation of ideas. ”[17] Analysis
There is one critical aspect which requires discussion prior to the forthcoming analysis regarding the opposing views of both Ronald Dworkin and Catherine Mackinnon. It may appear that the divergent opinions of Dworkin and Mackinnon really aren’t evaluating comparable aspects as it appears they are arguing on different realms of political philosophy. That is to say, Mackinnon chooses to frame her argument in terms of harms, while Dworkin chooses to frame his argument in terms of (negative) liberty.
Mackinnon knew that in order to prohibit pornography in the United States she would have to frame her argument in terms of harm, as American courts have failed to recognize that societal inequalities require judicial intervention. As such, it would appear that an analysis comparing their “divergent” views would be incongruent because the two talk about different aspects of political philosophy. [18] It does appear however, that this incompatibility of ideas is largely remediable when one considers harm – to use Dworkin’s own term – in its “full” light.
When Mackinnon speaks of harm, she also speaks of the rights and freedoms of the women to live without interference and free from obstacles in their pursuit for societal and economic equality. One could contend Mackinnon’s argument about the harm of pornographic material on women is also an argument promoting women’s equal freedoms in society. This connection does not appear to be that tenuous, particularly because one can not live in complete freedom when one is considered to be a second class citizen and denied many societal and economic benefits.
Section 7 of the Canadian Charter of Rights and Freedoms recognizes this fact when it provides substantive protection against violations to one’s “life, liberty, or security of person”. In other words, although Mackinnon grapples particularly with the harms of pornography, the individual’s right to freedom appears to be a common denominator in both philosophers’ arguments. Finally, a careful reading of Dworkin gives way to a specific viewpoint; Dworkin for some parts of his paper articulates what appears to be a legal viewpoint more than a philosophical one.
Although Mackinnon and he are both talking about freedoms, Dworkin takes great pains to separate the two types of freedoms – positive and negative. Mackinnon calls for positive freedoms, that is to say, she calls on the government to act in order to level the playing field. Dworkin rightly illustrates that Mackinnon’s argument is founded on a positive conception of freedom, but the American constitution doesn’t (currently) recognize positive freedom, as the constitution is based on a negative conception of freedom. 19] Again, there is a difference in focus as Dworkin comments on the current legal system and Mackinnon takes a normative approach to the way the courts ought to act. This factor can make a comparison between the differing views of Dworkin and Mackinnon a somewhat difficult one, however there are several underlying ideological differences which are worthy of comment. In the coming paragraphs I will discuss these differences in greater detail, outlining the ideological differences between the philosophers, ultimately leading me to conclude that Dworkin’s theory requires revision. One undamental tenet, isolated from the constraints outlined above, is the two philosophers’ divergent perspectives with respect to Mackinnon’s inequality argument. Dworkin appears to trivialize the societal inequalities as discussed by Mackinnon throughout her paper. While Dworkin never explicitly denies that such inequality exists, he states that even if it could be proven “as a result of causal connection, that pornography is in part responsible for the economic structure in which few women attain top jobs or equal paying jobs for the same work, which would not justify censorship under the Constitution. [20] Dworkin’s opinion is justifiable when the inequality is not systemic; in other words, those being oppressed have an equal ability to debate their oppressors. However, Mackinnon’s entire concept of inequality is that those without power have a far more difficult time being heard. Dworkin’s view is acceptable, as long as both parties are granted equal opportunity to voice their opinions, however, when one is disadvantaged in both the societal and economic realm, one can’t evenly debate with their opposition.
Dworkin ignores the better part of many lessons learned from the previous generation. The idea that those being harshly oppressed can somehow voice their objections in order to end their oppression and end inequality is highly questionable. Dworkin’s view implies that all that needed to happen in World War II was for the Jews of Germany to speak out against the oppressive Nazi regime and the horrors would have ceased. Further, the Jews in German society were actually in positions of power and could theoretically utilize this to stop the oppression.
Yet even with their positions of power and being at the forefront of Germany’s progression in a majority of academic fields, they were unable to fend off the German propaganda machine. [21] To make matters worse, Germany was one of the most progressive nations of its day following the enlightenment and prior to World War I. Yet despite the free flowing “marketplace of ideas” which was encouraged prior to the rise of the Nazis, the horrors of World War II continued uninhibited and unabated.
With the aforementioned example in mind, one can easily surmise that even with positions of power, stopping inequalities would be almost impossible without some state intervention. Mackinnon recognizes the uphill battle women have to climb in order to be recognized equally in society and requests that the government eliminate pornography, one such stimulus of inequalities. Dworkin’s view that an absolutist doctrine to free speech would lead to the disappearance of inequalities, is simply idealistic.
Dworkin ignores the entire thrust of Mackinnon’s argument, that by remaining neutral in issues of (in)equality, the state is in fact discriminating against women. Since women have been and are disadvantaged in both the economic and social spheres, the government can’t remain neutral and hope the “marketplace of ideas” will magically solve the problem. Women currently do not have the same power and ability to market their ideas because they are on an unequal playing field.
While government action may not solely eliminate discrimination or inequalities, and altering societal values through debate is critical in bringing about societal change, sometimes the government must level the playing field in order to have a fair and democratic discussion. Dworkin’s view completely ignores the cyclical nature of the oppression and inequality. It is similar to a man stuck in quick sand who requests help from his friend, only to have his friend throw him the shovel and tell him to get himself out. All the while the individual gets sucked deeper and deeper into the sand.
Dworkin’s view that the only way to end inequality is to fight for it yourself is fair, however only one part of the equation; it appears that little systemic societal oppression has been corrected without some form of government or external intervention. One such example is the systemic discrimination of African Americans during the early to mid 20th century. Had the government not taken steps to limit the inequality as was done in Brown v Board of Education, the forum in which a proper discussion could take place was impossible.
Another weakness in Dworkin’s analysis can be seen in his misplaced ordering of priorities. As described above, Dworkin’s states that even if one could prove a direct correlation between hard core pornography and the poor treatment of women in society, it would not warrant government intervention. Dworkin’s contention makes little sense when one considers the ultimate affects of the statement. It appears the rights of the individual to free speech exceed the rights of the individual to live without being harmed.
Let us suppose there was an individual who was usually non-violent, but one day assaulted a female after watching pornographic material. While a direct correlation may be implicit, proving it would be difficult. Even if such a case were to occur, unless a direct correlation could be shown between the actions of the accused and pornography, limiting an individual’s rights as a result is inexcusable. Simply put, Dworkin has erred with the organization of his priorities. As outlined above, Dworkin would prefer to err on the side of caution when limiting expression, but not when preventing harm.
Dworkin would be more afraid of wrongfully infringing on the rights of the pornography viewer rather than protecting women from physical harm. Dworkin is so concerned with the rights of the individual to free speech (what he considers a tenet of a democratic society) that he completely ignores the rights of the victim to be protected from harm – the most basic rights of any individual and a primary purpose of any government. This places the rights of the individual to freedom of expression above that of the individual to be free from harm.
This view is made all the more ironic because it is the state’s foremost objective to protect its citizens from harm! Put another way, if the state is unable to protect its citizens from harm, who cares about free speech? This miscalculation in and of itself leaves Dworkin’s ideas and theory, somewhat in question. On the other hand, Dworkin could contend that this would result in an almost complete and utter restriction of speech, as any speech that could be deemed harmful would be prohibited. It is of course, a slippery slope. This however, is an unacceptable excuse for failing to prohibit that which may be harmful.
Child pornography is one such example. Assuming the subject was a fully cognizant and reasoning 17 year old individual who willingly consented to all that occurred to him/her. Despite the fact the harm to the individual and society viewing these pictures may not be explicitly clear, a line must be drawn in order to protect society and children. Conclusion In the end, despite its flaws, the debate between Ronald Dworkin and Catherine Mackinnon does present two differing views with regards to pornography and its affect on society.
Although it may be difficult to compare and contrast the two authors’ views due to their different focuses, various ideological differences can be observed. Dworkin’s critique that pornography does not result in physical harm and that prohibiting pornography would be an infringement of individual rights fails to recognize the inequality argument as outlined by Mackinnon. Ultimately Dworkin is incorrectly placing the right of individuals to free speech over the right to be protected from harm.
Ultimately, although not recognized in the United States, Mackinnon’s views regarding the harm caused by pornography towards women and the importance of restricting certain forms of speech does appear to be reasonable. All in all, Mackinnon identifies several worthy considerations for the American courts when adjudicating cases involving positive liberty and more specifically the equal treatment of women in society by prohibiting obscene pornography. Appendix A The Butler decision, as recognized by those who adjudicated it, was a landmark decision in recognizing the boundaries of the Charter of Rights and Freedoms’ second section.
In this case, the appellant, Donald Victor Butler, was arrested after selling “hard core” video-tapes and magazines as well as sexual paraphernalia contrary to sections 163 of the Criminal Code of Canada. In all, there were 250 indictments filed against the appellant, 173 of which were directly against the appellant, the remaining 77 of which were charged through a joint indictment with Norma McCord, his partner. [22] Of the 250 charges, Butler was convicted on a mere 8, leading to appeals by both the prosecution and the defense.
In order to understand whether Butler had convicted more offenses or possibly none at all, the court needed to consider the constitutional validity of section 163 of the criminal code. [23] If section 163 was in breach of an individual’s right to freedom of expression as prescribed in sec 2(b) of the Charter of Rights and Freedoms, Butler’s rights were being infringed. In Brodie v. The Queen, the court established two relevant and applicable principles, the “Community Standard of Tolerance” and the “degradation or dehumanization test” in order to determine what material was an “undue exploitation of sex”.
The Community Standards test requires that the adjudicator(s) consider the standards of the “community as a whole”,[24] that is to say, the entire society or nation must find something so repugnant they believe other individuals should be protected from viewing it. It is important to note that the community standards test requires that one consider not his/her personal threshold of tolerance, but that of the greater community. To quote Dickinson, it is a standard of public “tolerance, not taste”. [25] The court ecognized that all material which may be considered harmful and an “undue exploitation of sex” may not pass the community standards test and thus created the “Degradation or Dehumanization test”. [26] The court recognized the causal link between the degraded image of women through pornographic material and their subordination in society, stating “the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women and therefore to society as a whole. [27] As a result, material which may not be seen as a violation of public decency may still be considered an “undue exploitation of sex”. While the court grappled with the relevance, independence, and exclusivity of the two tests, it ultimately determined that: a) Sex with violence “will almost always constitute the undue exploitation” b) Sex that may be considered degrading or dehumanizing “may be undue if the risk to society is substantial” c) Sex that is not violent and neither degrading nor dehumanizing “is generally tolerated… unless it employs children. [28] After establishing a model for adjudication, the court first determined that section 163 of the Criminal Code did in fact limit and restrict certain forms of expression as protected by section 2(b) of the Charter. [29] As with any potential violation of Charter protected rights, the Supreme Court was then required to consider whether or not the violation was “demonstrably justifiable in a free and democratic society”, through the use of the section 1 Oakes test.
The Court ultimately determined that section 163 of the Criminal Code achieved a pressing and substantial objective in a reasonable manner and that the charges filed against Butler were constitutional. The Supreme Court ordered that the case be retried in light of the majority’s recognition and establishment of a new legal framework for this and similar cases. [30]
Works Cited List
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