was a landmark decision: for the first time, a high-level court went on record as opposing the popular notion that harassment is an inevitable fact of life and that for the law to try to protect against such treatment is equivalent to tampering with the laws of nature. A typical feature of pre-Barnes cases as documented by MacKinnon was the courts’ insistence that what plaintiffs had argued was abusive treatment was merely a normal expression of male sexuality (“boys will be boys,” in effect), where “normal” is assumed to mean something like “natural.” Another typical feature of such cases was the courts’ assumption that harassing behavior was a feature of the unique dynamics of the relationship between two individuals, rather than as a pattern that was made possible by the fact that the harasser is in a position of power vis-à-vis the harassed and so should be seen as an expression of that power.

Thus MacKinnon’s argument, basically endorsed by Barnes, involved two steps: recognizing that certain typical expressions of male sexuality may be abusive despite their being typical; and recognizing the workplace as an environment in which men will tend to harass women because they have the power to do so.

While Barnes was significant, feminists such as MacKinnon considered that its definition of what constituted harassment—basically, “sleep with me or you’re fired” or variations of this sort of quid pro quo—was too narrow. Then, in 1986, the U.S. Supreme Court unanimously decided, in Meritor Savings Bank v. Vinson, that harassment as a legal offense is committed whenever unwanted sexual remarks or behaviors create a “hostile environment” for workers. MacKinnon was part of the plaintiff’s legal team in this case. She wrote Vinson’s brief to the Court, helped her attorney prepare for oral argument, and appeared as co-counsel before the Court. What was at issue was whether Title VII covered only tangible losses—such as if an employee were fired for not sleeping with the boss—or whether psychological damage was also covered. Vinson’s employer conceded that her supervisor harassed her—by fondling her, for example—but that such behavior was not illegal. MacKinnon’s argument was again quite simple: Does the court require that a person “bring intensified injury upon herself”—quit or be fired—“in order to demonstrate that she is injured at all?” The Court responded unanimously: No!

In Harris v. Forklift Systems (1993), the Supreme Court took a further step along the course charted by Vinson, when it decided unanimously that the criteria for deciding whether a hostile environment exists should depend on the quality of the environment—specifically, on whether it could be reasonably perceived as hostile or abusive—and not on the psychological or other effects it has on its victims. Otherwise, a harassed individual who did not break down under the pressure of harassment would, in effect, be punished for having summoned the emotional resources to survive the experience. This argument is basically the same as the “intensified injury” argument MacKinnon made in the Vinson case.

Since the early 1980’s, MacKinnon has been involved in a campaign against another normal expression of male-dominant sexuality that she perceives as harmful to women: pornography. She notes that in the video age the harm done is direct and immediate: What is depicted in visual pornography as rape, coercion, and torture, actually occur as rape, coercion, and torture in the making of the pornography. MacKinnon implies that there are at least two reasons why most people fail to recognize this obvious fact about pornography (and why, as a result, her views on the subject are considered outrageous by many commentators). First of all, pornography depicts women as enjoying what is done to them. Second, even if they are not enjoying themselves, it is assumed that these women are participating voluntarily. To take the second assumption first: MacKinnon argues that women are in most cases coerced into making pornography by their boyfriends or pimps or drug suppliers (who may, of course, be the same person). Once this coercion becomes apparent, the first defense of pornography falls by the wayside: If you can be forced to make pornography, you can be forced to appear to enjoy it. Furthermore, MacKinnon argues that pornography is an indirect cause of tangible harms to women in the sense that abusers and rapists are often inspired to abuse and rape by the scenes of abuse and rape they have seen, and been turned on by, in pornography.

In the mid-1980’s, MacKinnon and feminist writer and activist Andrea Dworkin embarked on a campaign to make it possible for victims of pornography to sue their victimizers. In the fall of 1983, MacKinnon and Dworkin framed a civil antipornography ordinance for the city of Minneapolis; it was passed by the city council, but was vetoed by the mayor before being passed and vetoed again. In 1984, a similar law was passed by the city of Indianapolis and was signed by Mayor William Hudnut. This ordinance was struck down by a district court shortly thereafter; and the district court’s decision was upheld by a federal court of appeals in 1986. It agreed with the lower court that the ordinance violated the First Amendment guarantee of free speech—even while conceding, for the most part, the harms pornography does to women.

Despite these legal setbacks, MacKinnon has continued to campaign tirelessly against the pornography industry. Over the years, she has further refined her argument against pornography. In her 1993 book, Only Words, she continues to treat pornography, like harassment, as sex discrimination, and points out the tension between the First Amendment guarantee of free speech, which has so far protected the pornography industry, and the Fourteenth Amendment guarantee of equal protection of the laws, which MacKinnon believes ought to apply to victims of pornography. But then she adds a new argument, which would, if accepted, resolve this tension, at least in the case of pornography: While the defenders of pornography assume that pornography is “merely speech,” the reality of pornography is what it does.

MacKinnon’s views on pornography have made her a frequent target of attacks in the press; reviews of Only Words in major publications ranged from the politely dismissive to the crude and badgering. The review that appeared in The Nation was so abusive that it elicited a written protest from her publisher. She has been ridiculed by Katie Roiphe, in her book The Morning After, as an “anti-porn queen.” Many feminists oppose MacKinnon’s “obsession” with pornography, which they claim diverts attention from more significant issues of economic and political equality (though MacKinnon believes these issues are all related) and depicts women as helpless victims in need of protection by the state (as if demanding equality does not normally involve seeking protection from the state, as in the case of civil rights legislation).

Despite these criticisms, MacKinnon has become a popular speaker on college campuses and at academic conferences, and is widely regarded as a charismatic teacher who has profoundly influenced an entire generation of law students—not to mention influencing the law itself.

Since 1993, MacKinnon has been involved in publicizing the sexual atrocities perpetrated by the Bosnian Serbs as part of their ethnic cleansing campaign, and providing legal assistance for the victims.

MacKinnon’s other books include Feminism Unmodified (1987) and Toward a Feminist Theory of the State (1989), both published by Harvard University Press.

Summary

There is perhaps no other feminist of her generation who has had as direct and profound an impact on society as Catharine MacKinnon. Her views on sexual harassment have become the law of the land; she continues to struggle, however, to achieve the same recognition for her views on pornography. That the law has begun to recognize certain normal expressions of male sexuality as violative of women’s dignity and women’s rights is an astonishing development—as astonishing as court decisions striking down segregation must have seemed in their day. Her crusade against the victimization of women raises the same painful question: Is society ready for equality? The development of case law in the areas of sexual harassment and pornography is largely the result of the influence of feminist legal theory, of which MacKinnon is widely acknowledged to be the foremost representative.

Bibliography

Cornell, Drucilla. Transformations: Recollective Imagination and Sexual Difference. New York: Routledge, 1993. A respectful yet critical assessment of MacKinnon’s analysis of sex inequality. Situates MacKinnon’s views within the context of contemporary feminist theory.

Fineman, Martha A., and Nancy S. Thomadsen, eds. At the Boundaries of Law. New York: Routledge, 1991. This collection of essays in feminist legal theory includes detailed analysis of MacKinnon’s work.

Lacayo, Richard. “Assault by Paragraph.” Time 143 (January 17, 1994): 62. Provides an account of MacKinnon’s war of words with book critic Carlin Romano, whose review of Only Words opened with a provocative statement about rape that offended MacKinnon deeply. Although brief, this article does provide insight into MacKinnon’s thesis concerning the representation of an assault as inciting real acts of discrimination and rape.

Rhode, Deborah L. Justice and Gender. Cambridge, Mass.: Harvard University Press, 1989. A prominent law professor at Stanford University, Rhode surveys a wide range of issues bearing on women and the law. Includes pertinent discussion of MacKinnon’s views on harassment and pornography.

Stoltenberg, John. Refusing to Be a Man: Essays on Sex and Justice. New York: Penguin, 1990. A collection of essays by a leading antipornography activist. Stoltenberg’s detailed discussion of the Minneapolis civil rights ordinance drafted by MacKinnon and Andrea Dworkin provides insights into how the ordinance came to be written, how its provisions were expected to be implemented, and why the issues raised by this ordinance are central to the struggle for gender equality.

Sunstein, Cass R. Democracy and the Problem of Free Speech. New York: Free Press, 1993. A professor at the University of Chicago, Sunstein is a widely respected expert on constitutional law. Because it contains a detailed argument that is in close accord with MacKinnon’s position on pornography, Sunstein’s work provides a noteworthy signal of the gradual mainstream acceptance of MacKinnon’s views.