[In the following review, Pasewark considers how MacKinnon's arguments will affect the First Amendment of the U.S. Constitution and asserts that Only Words “has the appearance, both in form and content, of a hastily constructed affair born more of anger, invective and deadlines than careful thought.”]

Only Words is a disturbing book—for better and for worse. For better, MacKinnon aims at the heart of an important and heated debate: what may or may not be said in the classroom, in the pulpit or on the street corner as well as what may or may not be shown on screen, written in books or depicted in the arts. In the end, however, MacKinnon contributes only more heat to this debate. In place of argument, she offers hyperbole; instead of coming to grips with her opponents' arguments, she piles up words of denunciation. If we have the right to expect more considered reflection from a full professor at a major law school, we should also expect more careful editing from a major university press—the book's endnotes should at least be numbered correctly so that they consistently correspond with the text. Only Words has the appearance, both in form and content, of a hastily constructed affair born more of anger, invective and deadlines than careful thought. It is, though, no less worrisome for that.

MacKinnon's central argument is that the range of the First Amendment prohibition on “abridging the freedom of speech, or of the press” is unconscionably wide; current judicial interpretation of the amendment protects speech that should not be allowed. On what grounds should speech be prohibited? MacKinnon offers two answers. First, all speech that “does what it says,” and what it says glorifies domination, is outside the range of legitimately protected expression. Primary in this category are “pornography” and “hate speech.” This first assertion ultimately collapses into a second more overarching claim: speech with “antiegalitarian meaning and devastating consequences,” which are finally identical for MacKinnon, should also be banished. MacKinnon's position rests on her fundamental, and unusual, contention that the equal-protection clause of the 14th Amendment provides ample justification to restrict the First Amendment. Not only is the First Amendment less important than the 14th, the speech of those deemed “powerful” is less worthy of protection than that of those deemed “powerless.”

MacKinnon develops her first rationale for prohibiting speech initially in a discussion of pornography. She marshals several arguments against pornography, most of which have been made before, not only by MacKinnon but also by the political right. But her primary thesis is that pornography should be eradicated because it is speech that “does what it says,” that is, it not only speaks the subordination of women, its very production is an act of subordination. Speech that either is or results in domination or subordination (racial and sexual “hate speech” are included in this broad category) is fair game for the law, according to MacKinnon; it should be outside the protection of the First Amendment.

MacKinnon's case is built on the complete erasure of any distinction between the commission of an act and the artistic depiction of it, not to mention the difference between the depiction (or even reporting) of an activity and the endorsement of it. In place of these distinctions, MacKinnon substitutes “sexual explicitness” and evidence of harm as criteria to distinguish protected from unprotected speech. The extent of sexual explicitness is, apparently, the only distinction between the disturbing brutality of A Clockwork Orange or Blue Velvet and the vast majority of pornographic films. The mere presence of an undefined level of explicitness is why MacKinnon supports the banishment even of pornography “that shows no overt violence.” Sexual explicitness is itself domination and subordination and should be outside First Amendment protection.

A second criterion by which MacKinnon thinks she is able to designate pornography as unprotected and illegal speech is that it does harm. MacKinnon's evidence here is extremely weak; certainly it does not meet any judicial standard of clear and present danger, and that is a matter for concern. If she is willing to allow three anecdotes of criminal behavior by self-professed pornography “addicts” to pass as compelling evidence of the universal harm done by pornography—and thus as justification for its elimination—then surely Boyz in the Hood, one of the finest films in the past five years, must be censored even sooner, since its release was accompanied by in-theater violence. In essence, MacKinnon makes all artists liable for every interpretation of their work, no matter how outrageous or unconscionable. Her implicit appeal to a less than precise idea of “public order” reveals MacKinnon's affinity here, as elsewhere, with the far right.

There is even more cause for concern. Finally, not even a division between fact and fiction is relevant to the protected status of speech in MacKinnon's legal universe. Her indictment of violent pornography—“In the visual materials, [viewers] experience [violence] being done by watching it being done. … Men [experience orgasms] doing this”—applies equally to nonfictional material.

This stunning ignorance of male sexuality also allows her to claim that aggression and the desire to violate women are activated only by pictures and words, and automatically so. No interpretation, whether it leads to revulsion or delight, is possible—dirty pictures are addressed not to the mind but “directly to the penis” in a process that “is largely unconscious and works as primitive conditioning, with pictures and words as sexual stimuli.” Filmed brutality of actual, not fictional, violence could not horrify men; it could only stimulate them. It is not at all clear how, by this standard, a documentary presentation of the brutalization of Bosnian Muslim women could escape the censor's eyes.

To be sure, not all films or works of literature that “do what they say” are sexually explicit. But sexual explicitness is an arbitrary dividing line for protected speech. MacKinnon is coolly, almost disinterestedly dismissive of liberal defenses of First Amendment rights. One she repudiates speedily and without argument is the claim that banning speech at the margins, speech that few care for (such as pornography and hate speech), sets a corrosive precedent that eventually allows the eradication of speech that is rational, meaningful and truthful. A sad but illuminating irony of Only Words is that, after summarily rejecting this “slippery slope” hypothesis, MacKinnon proves its accuracy. Only Words progresses from advocating a ban on pornography, to pressing for a ban on hate speech (both vaguely defined), to defending the legitimacy of eliminating all anti- and nonegalitarian speech because, like pornography and hate speech, antiegalitarian speech also advocates and extends systems of subordination. A slippery slope indeed, and one that ends far beyond the coordinate marked “sexually explicit.”

Indeed, it is sometimes unclear how Only Words can avoid falling victim to its own egalitarian standard and especially its prohibition against hate speech. Without a scintilla of evidence, MacKinnon talks blithely of “the male rape fantasy” and “the ultimate male bond, that between pimp and john.” Such claims are reckless and false—not to mention insulting. If taken seriously they mean, for example, that men hearing about sexual crimes against women really experience pleasure rather than sinking feelings of dread, nausea, helplessness or anger that men are capable of doing such things to women. MacKinnon's divisive language equally insults any woman who has confided about her own violation to any man; according to MacKinnon, she has been speaking with the enemy; “your violation his arousal, your torture his pleasure.” MacKinnon's prescription is for a separation of—and antagonism between—the sexes on the basis of the moral inferiority of men.

Where have we heard such language before? We have heard it when women, blacks and others have been spoken of as inferior. In those cases MacKinnon seeks to ban subordinating language because it is hate speech. Yet how does her own vitriol gain exemption from the same ban? It is here that MacKinnon's egalitarianism is decisive: she maintains that it is a fiction that “equality could be achieved while the First Amendment protected the speech of inequality.” In the absence of full social equality MacKinnon proposes to eradicate unequal speech. Apparently, only those who dominate are capable of hatred; in any case, she maintains that only they are capable of hate speech. She stands opposed to standard First Amendment interpretation in which, she maintains contemptuously, “the position of those with less power is equated with the position of those with more power as if sexual epithets against straight white men were equivalent to sexual epithets against women” (emphasis added). It is not the content of speech that makes it hateful or not, subject to legal restriction or not, but its targets—the powerful or the powerless.

MacKinnon's project defies common sense. Is it plausible to say that a person who can prevent another from speaking is “dominated,” while the person who is prohibited from speaking is a “dominator”? To answer yes is to deny that an act of suppression is also an act of domination, and such blindness is at the very center of fanaticism. If, on the other hand, the obvious is granted—namely, that suppression of speech is itself an act of domination—MacKinnon's argument is self-defeating. The moment the speech of the dominant is prohibited, they are by definition no longer dominant but dominated exactly to the extent that they are prevented from speaking. MacKinnon's egalitarian standard devours itself. If one were to follow the logic of the argument, those prevented from speaking—just because they are impeded—immediately gain the right to determine the range of acceptable speech and to prohibit whatever speech they please. Round and round it goes.

That MacKinnon does not follow her own logic to its conclusion exemplifies a troubling trend: the assumed right to speak is related directly to a showing of one's oppression. If one cannot claim to be oppressed or victimized, one has nothing to say that is worth hearing. This tendency is disturbing, but not because our culture is trying to turn an ear to persons or groups that have been ignored or oppressed. That is long overdue. But the purpose in discussing social domination is to overcome it—and this point now seems lost. There is, in fact, less and less incentive to rise above the status of being a victim because, if one agrees with MacKinnon, as soon as any person or group succeeds in not being a victim, that person or group is dismissed from cultural attention.

Contemporary public discussion is driven increasingly not by a desire to escape oppression, but by the need for everyone to assert that he or she is dominated in order to earn the right to speak. One suspects that much of the flap among men about “male-bashing” is motivated by some men's felt need to be included among the “victims.” Suffering is no longer something that must be conquered; even small victories of justice cannot be acknowledged without the victor's ejection from public speech. Suffering has become the admission ticket to the privilege of speech. It is this perversion of purpose that fuels a broad defiance of common sense—that allows people to give speech after speech while claiming to be silenced.

Other consequences follow this peculiar use of oppression. Among them is MacKinnon's simplistic analysis of dominance and its relations. For MacKinnon there are dominant and dominated groups—period. She shows no inkling that a group that dominates certain arenas may itself be dominated in others. It seems evident, for example, that women's continuing susceptibility to sexual violence does not imply that all women are economically disadvantaged. Such an idea does not occur to MacKinnon. More disappointing, Only Words gives no hint that MacKinnon believes it might be possible to construct social or personal relations between groups or individuals on any ground other than domination—a sad prospect indeed.

Armed with these claims about domination, MacKinnon insists that the 14th Amendment authorizes not the “stupid theory of equality,” that is, formal equality of rights, but the intelligent theory of substantive equality. How intelligent is substantive equality as a criterion for determining who is allowed to say what? Even to probe that question is difficult since, for MacKinnon, there can be no discussion about the validity of egalitarianism itself; she grants and removes the possibility for such a debate in the space of a single paragraph. But, in any case, one wants to know what exactly “substantive equality” means. Does it mean equality of income, goods, opportunity, health care, home size? All of these and more? None of them?

Further, one wants to know who are the relevant groups to be made substantively equal. MacKinnon draws the line between white men and everyone else. The result is less than credible. It allows her to maintain that male American Nazis, for example, are socially dominant, while all women are dominated. By what possible yardstick? Certainly not with reference to the members of reactionary groups themselves, who generally join together precisely because they feel impotent—and fortunately, for the most part they are. MacKinnon certainly can't arrive at such a conclusion by claiming that no women have been published by Harvard University Press or are full professors of law. Even MacKinnon admits that it is a “rather obvious reality that groups are made up of individuals.” If so, why not slice the pie differently so that MacKinnon and upper middle-class academic women cannot claim the oppression of poor inner-city or rural women as their own; and so that men who clean law school floors and bathrooms in Ann Arbor are not placed absurdly in the category of dominators? At what level of social status and at how comfortable an income bracket do the claims of across-the-board oppression begin to ring hollow?

These questions are not idle ones but are central to MacKinnon's project. In skating across all these issues—the proper meaning of equality, whether equal protection implies egalitarianism, relevant comparison groups, implications of equality for humanity and society—MacKinnon also slides over a crucial issue: Who decides? Christians, among others, know that we are mired in sin to the extent that we see our own needs more clearly than others', that we will give a privileged position to our own truths and that, given a chance, most of us will deny others their fair claims upon us. We know, too, if we have read our Augustine and Luther, that these are also special dangers for government. MacKinnon seems to hold an utopian belief in the impartial decisionmaker (is it she?) who can, with a clear and principled eye, make the right decisions for the rest of us.

It was precisely the lack of confidence in the purity of anyone that led to the enactment of the First Amendment. Realistic cautiousness about who decides is, fundamentally, why the First Amendment must take precedence over the 14th Amendment and all others. To decide the meaning of the 14th Amendment, we must speak about it. If speech is prohibited, it is left to self-appointed saviors to determine that equality is the end of society and that they know what equality is. Then we shall be on our way to a totalitarian state in which those who are allowed to determine that constitutes “antiegalitarian meaning” can impose their version of equality and the 14th Amendment. We know only one thing in advance—they will not impose anything like equality.

There is no better way, there is finally no other way, to determine truth or falsity except through speech and language. MacKinnon's attempt to elevate a vague, arbitrary and coercive egalitarianism above First Amendment protected speech is a chilling move that is doomed to fail. Imposition of rigid equalities in power is finally a contradiction in terms. But MacKinnon is correct that the free-speech notion of a marketplace of ideas is not necessarily—and certainly not automatically—a success. Free speech is not merely a “right”; it is also a responsibility. In the current cultural climate, however, it is a responsibility easily passed off to others, especially in light of MacKinnon's own derogatory rhetoric. Ironically, if we believe MacKinnon, it really is the case that rape and sexual assault and harassment of women are solely “women's issues” because men are such lowly creatures that they not only all want to perpetrate such crimes but are incapable of understanding that a problem exists.

It is time to speak forcefully against such a divisive thesis and equally forcefully for the unity of humanity. It is also time that both sexes refuse to accept the balkanization of sexual violence as a “women's issue,” and that all races refuse to accept racial violence as a problem of the victimized race alone. These are human issues, purely and simply, and it is the responsibility of people within all ethnic, racial, gender and economic groups to speak to them. Men not only have a right to speak about sexual violence, women have every right to demand that men speak about it. Given the currency of ideas such as MacKinnon's, the atmosphere has been poisoned for all of us. The “opening to a new conversation” cannot wait for the fully egalitarian society; such a wait would be endless. If more speech cannot guarantee the victory of truth, it remains true that speech, words and ultimately the Word are the only hopes for a fallen world. The right to speak has been available for some time. It is time for more of us to use it.