University of Michigan law professor Catharine MacKinnon and feminist writer Andrea Dworkin together have drafted model antipornography legislation based on the premise that pornography violates women ’ s civil rights, as evidenced by its detrimental effects on women as a class. Four injuries are recognized and made actionable: coercion in the production of pornography, forcing pornographic materials on others, direct assault caused by specific pornography, and trafficking in pornography (MacKinnon 1987, 179). Pornography is defined concretely, and excludes what is commonly known as erotica. A version of this legislation was passed in Indianapolis, but was later overturned as unconstitutional by the U.S. Supreme Court, which allowed a court of appeals decision to stand. In the words of MacKinnon, “ this is a law that gives victims a civil action when they are coerced into pornography, when pornography is forced on them, when they are subordinated through the trafficking in pornography ” (MacKinnon 1987, 210). A similar ordinance drafted for the city of Minneapolis was vetoed twice by the mayor. The antipornography legislation is an example of the uneasy coalitions formed on both sides. 13 According to Kaminer, “ it was introduced in the Indianapolis City Council by an anti-ERA activist, passed with the support of the right, and signed into law by the Republican mayor ” (Kaminer 1992). On the other hand, a group that includes Adrienne Rich and Betty Friedan formed the Feminist Anti-Censorship Task Force (FACT) in order to oppose such legislation. 14
Religion is at the core of other constitutional disputes, and the signals on this front are mixed. Religious freedom has been upheld by higher courts in the case of some Christian Science parents who refused to seek mainstream medical treatment for their ailing children and relied instead on spiritual healing, even though the outcome was the death of the child (Goodrich 1992). On the other hand, the prohibition against the use of the narcotic plant peyote has not been lifted in connection with the religious rituals of American Indians. In the 1990 Smith case, the Supreme Court determined that the prohibition against peyote was neutral because it applies to everyone, and does not single out a particular group based on their religion. 7 The ruling has not pleased religious organizations, who saw in it an erosion of their free exercise of religion. Not surprisingly, when the issue of animal sacrifices in the name of religion surfaced, religious organizations ranging from Presbyterian to Jewish to Seventh-Day Adventist joined the American Civil Liberties Union (ACLU) in support of the freedom to practice religious rituals (Roman 1992a).
In his recent book, in a chapter entitled “ The Gospel According to Catharine MacKinnon, ” free-speech absolutist Nat Hentoff criticizes the MacKinnon-Dworkin legal approach to pornography as censorship and cites opinions that express doubts about the link between pornography and violence against women (Hentoff 1992). Others have been less restrained in their opposition. A superb example of cooptation and identification with the male image of sex and pornography is presented by Camille Paglia in a breathless and florid attack directed toward the MacKinnon-Dworkin team, whom she dubs “ the Mad Hatter and her dumpy dormouse ” (Paglia 1992). “ I am a pornographer, ” she declares in the opening line of her Playboy article, which alternates between imaginative insults ( “ Let ’ s get rid of Infirmary Feminism, with its bedlam of bellyachers, anorexics, bulimics, depressives, rape victims and incest survivors ” ) and a poetic exaltation of pornography ( “ Pornography is a pagan arena of beauty, vitality and brutality, of the archaic vigor of nature. It should break every rule, offend all morality. . . . Pornography lets the body live in pagan glory, the lush, disorderly fullness of the flesh ” ). Paglia ’ s is a new, eloquent way of repeating the banality that women should enjoy degradation and violence if that is what turns on men, since sexuality is defined by men for both sexes. 15
Whatever the merits of their arguments, the eloquence of pornography ’ s supporters, such as Paglia, is equaled only by the prose of outdoors columnists in defending hunting. In a column of barely over 800 words, Gene Mueller manages to describe “ the followers of America ’ s newest religion, the animal-rights activists who hold the life of a rat dearer than that of a human ” as “ Bambi people ” and “ dandelion pickers ” and ends his piece with a veiled threat: A startled hunter may shoot in reflex action and “ what if birdshot scattered all over creation and found. . . ” (Mueller 1992). His piece is meant to be humorous, of course, but its humor is the type that the people who are its targets don ’ t seem to appreciate. On the contrary, Senator Burns, who introduced the hunter harassment section of the crime bill, portrayed hunt protesters as dangerous extremists from whom the hunters must be protected (Seelye 1994).
In a galloping legislative fervor, almost all states have already passed laws against activities that impede hunting. A few of these laws already have been or are being challenged for constitutionality, such as the 1985 version of the Hunter Harassment Act in Connecticut. The states are doing their utmost to avoid First Amendment challenges, including avoiding arrests or trying to drop the charges for those who violate the new laws (Bass 1992). A challenge to the amended 1990 Connecticut law, which still includes in its list of harassing activities “ natural or artificial, aural, olfactory or physical stimuli to affect wildlife behavior in order to hinder legal hunting, ” has failed (see Bass 1992). The prosecutor of the case was quoted as saying that the right to privacy of the hunter “ in the middle of the woods ” trumps any First Amendment claims by the activists. 16 The concern for the protection of the hunter ’ s privacy to shoot animals in the midst of public land, including our National Wildlife Refuges, forces those who sympathize with the hunted to risk arrest or stay out of public land during the endless sequence of special seasons for each “ game animal, ” from duck to deer to pheasant to squirrel and rabbit, who may be hunted all year round. This overwhelming concern of states for the right to privacy does not seem to extend to women, whose privacy rights regarding reproductive choices have been eroded in recent years.
The constitutionality of hunter harassment laws not only had escaped the scrutiny of various First Amendment champions until their emergence in the crime bill in 1994, but had not even received the same serious discussion as other challenging legislation, such as the antipornography or sexual harassment laws. Even National Public Radio failed to mention the constitutionality issue in a segment describing an uneventful hunter harassment protest in Pennsylvania during the first day of the bear-hunting season in 1992. 17 The MacKinnon-Dworkin model managed to pass in Indianapolis, only to be overturned, as already mentioned. The only other place it received support in the U.S. was in Minneapolis, but it was vetoed twice by Mayor Donald Fraser (Hentoff 1992, 340). In contrast, hunter harassment laws met no such obstacles, as their swift passage attests.
Several explanations can be advanced for this discrepancy. One is put forward by MacKinnon herself to explain the failure of antipornography legislation: the harm caused by pornography to its victims is not considered as important as having pornography and pornographic materials available (MacKinnon 1989, 213). Hunter harassment, on the other hand, harms a lot of people who stand to gain by the promotion of hunting.
Another explanation is that the speech of certain citizens is more valuable than the speech of others. Thus, the failure of antipornography laws safeguards the free speech of men while silencing women;the passing of hunter harassment laws restricts the speech of animal rights activists, the majority of whom are women. In reality, of course, the speech of anybody venturing in the woods may be restricted, but only animal rights activists are targeted, because of their presumed intent to disrupt hunting. The Supreme Court of Connecticut conceded that free speech issues are involved, but nevertheless held that the hunter harassment statute was content-neutral, that is, it did not prohibit any particular message of the speech and could be regulated by the state.
A third, not unrelated, reason that pornography is considered to be speech, and is therefore constitutionally protected, while the speech of anti-hunting activists passes as conduct, and is the
refore illegal, 18 is that both pornography and hunting are multibillion-dollar industries. This fact about pornography is well known, but the economic value of hunting may not be so obvious. Alan Farnham (1992) gives a breakdown of the $10 billion tag paid by hunters: the largest percentage of the money, 49 percent, goes for equipment, including guns, ammunition, and vehicles; 19 percent goes for food and lodging; 16 percent for transportation; 9 percent for access to land; and 4 percent for various government fees and permits. The beneficiaries of this largesse, including the government, are not going to deprive themselves in order to protect the speech of out-of-touch-with-reality Bambi lovers, 19 who are so characterized to prevent the public from identifying with them and sympathizing with their cause. Ironically, although the harm done by pornography is disputed or dismissed as indirect or irrelevant by free-speech liberals, pornography supporters, and the courts, there is no direct harm that can be attributed to the antihunt activists, except perhaps that of spoiling the fun of the kill for the hunters. On the contrary, the hunt protesters may be responsible for reducing the human carnage that is directly caused by hunters, by preventing their shooting as often (and as carelessly?) as they otherwise would. Although the total number of hunting accidents continues to decline, possibly due to mandatory safety courses for hunters in 47 states, 20 the number of human fatalities due to hunters (including self-inflicted fatalities) increased from 146 in 1990 to 160 in 1991 (Castaneda 1992). Obviously, the hunted animals, who are the real victims, are not counted as injuries or fatalities — to even suggest that they should be would seem absurd to those who engage in or promote hunting.
The issue of harm is also at the core of efforts to regulate hate or racist speech. It is true that some hastily drafted hate-speech codes in universities have been overturned by the courts or voluntarily withdrawn, and that the signals from Supreme Court cases are not encouraging. 22 However, there is increasing recognition of the damage that hate speech inflicts on its intended victims. New efforts are directed toward balancing First Amendment principles and victim ’ s rights (see Matsuda 1989).
In the case of hunter harassment, the law is trying to protect the traditional activities of the special group of hunters, although in doing so it restricts the activities of a nontraditional group of zoophiles and even of hunting-neutral individuals who are uncomfortable remaining in parks while shooting goes on. The activities of hunt protesters who accost hunters and try to convince them to spare the animals do not cause a deprivation of something to which the hunters should be exclusively entitled. The protesters ’ exhortations that hunters respect the life of a deer or shoot with a camera instead of a gun cannot be characterized as “ fighting words ” or hate speech by any stretch.
Why should the animals in public lands be considered the property of hunters to kill and not of the hunt protesters to save? It is difficult to avoid here a comparison with the pro-life protesters who block entrance to abortion clinics. Their activities, as long as they are nonviolent, are still protected as speech, but the peaceful activities of hunt protesters are outlawed as conduct. 23 In contrast, the hunters may kill animals, who are independent subjects of life, as part of their right to privacy without interference from protesters; the privacy of women seeking the termination of pregnancy — or, to use the same language, the killing of a fetus that is not independently viable — is not always protected from the abortion protesters. The currently unfolding developments in Congress and in the courts have complicated the issue. Congress has enacted legislation to protect abortion clinics from violent protesters at the same time it has passed legislation to ensure the “ safety ” of hunters from those interfering with a “ lawful hunt. ” 24 The ACLU supported the clinic protection bill but opposed the hunter harassment bill. The explanation for the difference in treatment may be that Congress, under the influence of the National Rifle Association lobby, lumped the animal advocates with violent demonstrators, while the ACLU, when it finally noticed the issue, was capable of distinguishing between violence against abortion clinics and the peaceful speech of hunt protesters.
Reexamining the differential treatment of free speech in the efforts to regulate pornography and hunter harassment in light of the previous observations, we may conclude that the discrepancy is best explained by recognizing that it is not a discrepancy at all. Antipornography laws restrict the speech of men only to the extent of giving some speech to women. From the perspective of women, who are the main victims of pornography, the antipornography laws are really laws for women ’ s speech. The hunt protesters, who stand as surrogates for animals, are also asking for speech, speech that so far has been reserved for hunters. Their actions on behalf of animals are the nonviolent expressions of a viewpoint, and therefore speech.
The issue of harm may be crucial. 21 In her writings and speeches MacKinnon often gives examples of other types of speech that are not protected because of the harm they may cause. Shouting “ Fire! ” with no reason in a crowded theater, giving an attack command to a specially trained guard dog, giving unlicensed medical advice, false commercial advertising, soliciting bribes, criminal conspiracies, threats, contracts that violate the law — none of these are currently protected as free speech, and nobody is complaining. Pornography, therefore, may be regulated under the same theory of harms that justifies the regulation of all these other forms of speech. The harms that can be attributed to pornography include harms during its production, harms to women in the form of increased sexual assaults and violence as a result of pornography, and harms from its use in sexual harassment (Sunstein 1993a). Similarly, objections that such regulation is not neutral because it restricts one viewpoint (presenting women as inferior) but not its opposite (presenting women as equal), can be answered by reference to the other examples of regulated speech. The fact that we fail to see the lack of neutrality, for instance, in banning the advertising of illegal drugs, while welcoming advertising against illegal drugs, is due to the widespread acceptance of such actions. Lack of neutrality becomes invisible when we deal with conventional or traditional views, but stands out when the views are nontraditional (Sunstein 1993a).
Similarly, the actions of the hunters can also be interpreted as an extreme form of speech: if animals are mere objects and not persons, then killing them for sport is a form of speech in the same sense that flag burning is considered speech. The flag is a symbol that stands for a nation, a government in power, or a dominant ideology. Therefore, burning the flag can be seen as an expression of political belief protesting the status quo. Although no animals have legal standing, game animals are excluded from even the minimal protection afforded by anticruelty legislation. For hunters, game animals provide sport and a means of validation of their manhood or brotherhood with other hunters. Hunting and trapping are often part of the rites of passage into adulthood in rural communities. Hunting, therefore, can be a form of speech that expresses a masculine ideology of play, sufficiency, and dominance. It is an affirmation, not a protest, of the status quo. Since game animals have no legal rights or protection in hunting season, no harm is involved: hunting becomes speech. If this interpretation seems far-fetched, it is only because of its unfamiliarity and the fact that it has to be presented in a culture where animals do not really matter. Ironically, it is precisely the fact that animals do not count that allows us to consider hunting an expression of a viewpoint or speech in our society.
Seen in the light of speech for privileged versus marginalized groups, the contrasting histories of antipornography legislation and hunter harassment laws are in fact consistent. The two largely overlapping groups, women and hunt protesters, are simply silenced under current law. The case for privacy is similar. Hunters can easily claim the right to privacy in order to fight off interference while they are shooting beings that do not belong to them in public areas, but women cannot receive the same protection in private abortion clinics without jumping various judicial and legislative hoops.
The hunted animals, who have been simp
ly transformed into “ game ” to be “ harvested ” when ripe during the appropriate “ season, ” furnish another example of the absent referent, which Carol Adams describes so aptly in connection with meat: “ The animals have become absent referents, whose fate is transmuted into a metaphor for someone else ’ s existence or fate . . . in this case the original meaning of animals ’ fates is absorbed into a human-centered hierarchy ” (Adams 1990, 42). In fact, the metaphors of game and meat overlap in the case of hunted animals, as hunters increasingly try to justify their killing by consuming the object of their violence, or in some cases, try to receive absolution or the credit of beneficence by offering it to charitable organizations to be consumed by destitute or impoverished humans (DePass 1992). In this way, the poor become the unwitting accomplices in the demise of those who are even worse off than themselves. In a similar vein, money from the recognized symbol of pornography, Playboy magazine, has been contributed through the Playboy Foundation to feminist or women ’ s causes (MacKinnon 1987, 134). We can pursue the analogy to the case of prostitution. The homeless 25 have so few options that their consumption of the hunters ’ bounty cannot be considered as approval of hunting, just as prostitution cannot be considered as a free choice even for the women who claim they engage in it out of choice (Giobbe 1990).
There is also a more straightforward connection between pornography and hunting. When not hunting, hunters can entertain themselves with other manly attractions provided for them in their hunting lodges: As Farnham (1992) reports, “ you can get a striptease and a Bud for $1.50 ” ; the stripper collects tips “ off customers ’ noses. Not manually. ” It may indeed be entertainment or it may be psychological preparation, such as showing pornographic films to the Gulf War pilots on the eve of their “ surgical strikes ” against Iraq. 26 There is an even more gruesome permutation of this theme in the civil war in Bosnia. A captured Serb fighter revealed how he was trained in hand-to-hand combat using live pigs, whose throats he slit after immobilizing them. He was then asked to apply this practice on Bosnian prisoners of war, and in the rape and murder of Bosnian girls. He claims he was following orders (Beeston 1992).
Animals and Women Feminist The Page 18
