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5
Maria Comninou
Speech, Pornography, and Hunting
Introduction
The Constitution, says Catharine MacKinnon, “ is a piece of paper with words written on it ” (1987, 206). This piece of paper has become the ground over which battles of opposing interests are fought. Which group wins, in the short term at least, is likely to be determined by political appointees to the Supreme Court.
The failure to achieve consensus in problems that involve moral values and ethics is forcing all sides to rely on legislation, preferably at the federal, and failing that, at the state level. Issues that affect women profoundly, such as abortion or sexual harassment and pornography, for example, are moving from the public forum to the hands of the law and back. Their fate in terms of the law becomes a matter of interpreting the right to privacy in the case of abortion and the right to free speech in the case of sexual harassment and pornography. Depending on the case, the Constitution is either our ally and must be respected, or our foe and must be changed or reinterpreted. The disputes, expressed in the language of rights, 1 are really about drawing boundaries and deciding who is in and who is out.
While women and racial and sexual-orientation minorities are still fighting for a more secure position inside the circle of the privileged rightholders, another group is now pushing at the border. This group of “ dumb, ” “ subhuman brutes ” can be represented only by advocates drawn from the ranks of its oppressors. It cannot give consent and has no ability to determine its own fate. In the hierarchy devised by Homo sapiens, nonhuman animals occupy the lowest rung, and they have lent their names to all kinds of metaphors for ill-treatment. 2 On the contrary, no pejoratives that express direct contempt for the nonhuman animals 3 themselves come easily to mind, except for the straight-faced descriptions of modern technology: “ animal models ” and “ biomachines. ”
Animals have still no legal “ standing, ” 4 and their advocates are often forced to protect them through subterfuge. Although we have no legislation protecting the rights of animals as such, we do have some anticruelty laws. However, some animals are even denied the “ animal ” label, which could activate a modicum of protection. Animal advocates have resorted to the courts to force the U.S. Department of Agriculture (USDA) to include mice, rats, and birds in the definition of “ animals ” covered by the standards of the Animal Welfare Act of 1970, but have not yet succeeded in overcoming the hurdle of acquiring legal standing. 5
Even efforts directed toward passing legislation that will ban some of the most unnecessary practices in the treatment and commercial exploitation of animals — such as the Downed Animal Act, for instance — have not yet been successful (Hazard 1992). This act, the purpose of which was to provide humane and timely euthanasia for injured or sick livestock who can no longer stand or walk, was last introduced in the 103rd Congress and died there because there is some money to be made by marketing these spent creatures before disease claims them. A similar bill (Cal. S.B. 692) was signed into law in California in September 1994, but not before it was rendered toothless and ineffective by a few seemingly minor but key changes. The euthanasia provision, for instance, was replaced by the requirement to either take “ immediate action to euthanize the animal or remove the animal from the premises ” (Humane Farming Association 1994). Opposition efforts of a much wider scope, such as hunting harassment laws and sweeping legislation aiming at protecting animal laboratory secrecy, 6 have been successful at the state and even federal level, in spite of the constitutionality issues they raise.
In this article I chronicle the unequal importance or protection that has been accorded to free speech in the seemingly unrelated cases of pornography and hunting. Comparing first the reactions to antipornography and hunter harassment laws, we find that we are dealing with situations in which those in power make and interpret the laws to suit their purposes. A comparison of sexual harassment and hunter harassment laws reveals further incongruities. If we want to take sides, it may appear superficially that we cannot side with women and animals without loss of consistency on the matter of free speech. Upon reflection, however, we find that we can trust our sympathies for both, because these inconsistencies dissolve if we recognize that pornography and sexual harassment are really about silencing women, just as hunter harassment laws are about silencing the animals ’ only advocates. Women and animals or their advocates may not always appear to sit on the same side of the argument, because the issues involved are being redefined before our very eyes, but no matter which side they seem to sit on, it is, so far, the losing side.
Pornography and Hunting
From the examples already mentioned, we may surmise that a narrow interpretation of the Constitution, one that allows a restriction on fundamental rights, is considered legitimate when the groups affected matter. Otherwise, the Constitution stands
absolute. For instance, an avalanche of opinion and legal expertise, not the least from ACLU, will rush to defend free speech when the challenge comes from women seeking to pass antipornography legislation. But there is a deafening silence from the First Amendment defenders when the challenge comes from hunting groups. The defense of free speech in the latter case has fallen predominantly on the shoulders of animal rights activists. When a provision dealing with the “ obstruction of a lawful hunt ” was slipped into the anticrime bill H.R. 3355 under the guise of “ recreational public safety, ” the ACLU belatedly woke up to the free speech problem.
Superficially, the failure of antipornography legislation and the quick success of hunter harassment laws, 8 are on opposite sides of the free-speech debate, and therefore simply point to inconsistency. But on a deeper level, both cases are about who “ calls the shots. ” In this respect, the animal sacrifices case recently decided by the U.S. Supreme Court could have been enlightening. The city of Hialeah, Florida, passed ordinances banning animal sacrifices, but only in response to its open practice by followers of the Santeria religion. 9 Therefore, it was argued, the legislation was aiming to curtail the free exercise of a particular religion, and not to prevent animal cruelty or protect public health, as the city claimed. Because the ordinances failed to meet the criteria of “ neutrality, ” specifically targeting religious slaughter while excluding other cases of animal slaughter, the Supreme Court ruled against Hialeah. 10 The decision was based on the Smith ruling that the use of banned drugs is not permissible even in the interests of religion and state separation. 11 Therefore, the question of whether animals may lose their lives in the interest of the free exercise of religion has not been answered, and must await a new case not hampered by the flaws in Hialeah.
The pornography issue has divided both the feminist block and the liberal block and has created some strange alliances. 12 Some feminists have opposed any legislation against pornography on the grounds that it is speech, and that any restriction of speech will disproportionately affect women. On the other side, some religious or right-wing conservatives have supported restrictions on pornography on the same grounds that they oppose obscenity: it offends community standards and debases family values. The feminists who oppose pornography, however, are not motivated by a puritanical morality. Instead, they see pornography as a political issue that affects the status of women in a male-dominated society.
Animals and Women Feminist The Page 17
