[In the following review, Posner maintains that Only Words is “eloquent and forceful,” but derides the work for lacking “brevity,” “careful distinctions, scrupulous weighing of evidence and fair consideration of opposing views”]

The title of Catharine A. MacKinnon's new book is intended as an ironic commentary on the belief that pornography is “only words” and therefore, unlike sticks and stones, can never hurt anyone. There is a further irony that is unintended: Only Words is a rhetorical, rather than an analytical, production; it is only words. It is eloquent and forceful but it lacks, perhaps because of its brevity, the careful distinctions, scrupulous weighing of evidence and fair consideration of opposing views that one is entitled to expect in a work written by a professor at an eminent law school (Michigan) and published by a distinguished university press (Harvard).

The book is a verbal torrent that appeals, much like pornography itself as MacKinnon conceives it, to elemental passions (fear, disgust, anger, hatred) rather than to the rational intellect. There is no nuance, qualification, measure or sense of proportion. “You grow up with your father holding you down and covering your mouth so another man can make horrible searing pain between your legs. When you are older, your husband ties you to the bed and drips hot wax on your nipples and brings in other men to watch and makes you smile through it.” “The message of [pornography] … is ‘get her’ … This message is addressed directly to the penis, delivered through an erection and taken out on women in the real world.” “Society is made of language,” and “speech … belongs to those who own it, mainly big corporations,” which are complicit in the production of pornography because they are managed by men and have a financial stake in being free to publish anything that is profitable. “Pornography makes the world a pornographic place.” We live in “a world made by pornography.” “‘Pornography [MacKinnon is quoting with approval her frequent collaborator Andrea Dworkin] is the law for women.’” And so on.

Beneath the anger, the hyperbole, the sarcasm, the rhetorical questions, the indignation and the innuendoes—MacKinnon says that “some [consumers of pornography] undoubtedly write judicial opinions” and suggests that the Supreme Court might not have held child pornography illegal if the children in the case before the Court had been girls rather than boys—the outline of an argument can be discerned. It is that pornography destroys the lives of the women who appear in it and causes the men who consume it to commit rapes and sexual murders, abuse female children sexually and generally discriminate against, disvalue and intimidate women. “Sooner or later, in one way or another, the consumers want to live out the pornography further in three dimensions,” want “to keep the world a pornographic place so they can continue to get hard from everyday life.”

Since pornography “impels behaviors in ways that are unique in their extent and devastating in their consequences,” why do the courts permit it? Partly because most judges are men, partly because, in laudable reaction to the excesses of the McCarthy era, they made a dogma of the First Amendment's free speech and free press clauses. This dogma has blinded these male judges to the fact that “women are far more likely to be harmed through pornography than the U.S. government is to be overthrown by Communists.” Judges do not realize, moreover, that there is no tenable distinction between words and deeds. “Saying ‘kill’ to a trained attack dog is only words.” They have never been able to explain “why, if pornography is protected speech based on its mental elements, rape and sexual murder, which have mental elements, are not [protected speech] as well.”

The incoherence of the judicial approach is further shown, in MacKinnon's view, by the fact that laws against sexual harassment in the workplace have been upheld even though much of that harassment is verbal: Why should women be protected only in the workplace? Above all, the courts have failed to recognize the tension between equality, which is protected by the Fourteenth Amendment, and freedom of expression, which is protected by the First Amendment. When free expression is used to demean or intimidate a vulnerable group—as in the case of racial epithets and other “hate speech,” including the teaching that the Holocaust never happened—restricting that express on may be necessary to the achievement of full equality, and it should therefore be allowed. We should not regret that, if this argument is accepted, members of minority groups will have greater freedom of speech than white males. “The more the speech of the dominant is protected, the more dominant they become.” We should not succumb to “the studied inability to tell the difference between oppressor and oppressed that passes for principled neutrality.”

To evaluate MacKinnon's argument, it is first necessary to consider what exactly she means by “pornography.” In ordinary language the word denotes a sexually graphic representation, verbal or pictorial, heterosexual or homosexual, designed to titillate or to arouse the reader or the viewer. What it means to MacKinnon is not entirely clear, but it seems implicitly confined to two categories of expression: live erotic performances (such as striptease dancing) and, more important, photographs of women nude or engaged in a sexual act, real or simulated. She says that “all pornography is made under conditions of inequality based on sex,” and this seems to exclude a purely verbal or cartoon presentation where no woman is involved in the production of the work as model or actress. To count as pornography, the representation must depict women as “subordinated” to men in some fashion, but this requirement would appear to be satisfied by virtually any nude photograph of a woman, since MacKinnon calls Playboy pornographic. She is understandably most concerned about violent pornography, especially when it involves actual violence rather than simulated violence perpetrated upon the pornographic models or actresses. Yet her implicit definition, confusingly different from the Dworkin-MacKinnon antipornography ordinance that Indianapolis adopted and the courts struck down, sweeps far more broadly.

It is odd that MacKinnon should leave her definition of pornography implicit. It is odd, too, that she should let her book create the impression that all pornography, as she defines it, except that in which child models are used, is legal in the United States. Most “hard-core” pornography—approximately, the photographic depiction of actual sex acts or of an erect penis—is illegal. MacKinnon could complain, but does not, that the existing laws are not enforced with sufficient energy. Since men control the legal system (she believes) and have (she further believes) an immense stake in pornography, she seems unable to conceive that there might actually be laws on the books, even underenforced laws, against the stuff.

But what is true is that her conception of pornography reaches far beyond current law, and would forbid a good deal of material that is considered to be privileged by the First Amendment. How much farther is unclear, but it may be very far indeed. Playboy's stock in trade is retouched nude photographs of smiling, voluptuous young women in suggestive poses. If these photographs, only moderately erotic by contemporary standards, are pornography, as MacKinnon appears to believe, much of the production of the American film and theater industry, a fair amount of cable television, a huge number of videocassettes, some greeting cards, some advertising and even an occasional opera are pornographic as well.

That is rather a lot to remove from the market. It would require, as MacKinnon fails to mention, not a smattering of Indianapolis-style local ordinances, but a law enforcement effort on the scale of Prohibition or the “war on drugs,” and with the same dubious prospects of success. Would it be worth it? In MacKinnon's distinctive idiom, “How many women's bodies have to stack up here even to register against male profit and pleasure presented as First Amendment principle?” In more neutral language, what is the harm of “soft core” pornography, à la Playboy, that would justify an Iran-style crusade against the photographic display of the female body?

On this critical question, the book is largely a blank. A footnote cites several studies that have found that pornography can incite aggressive behavior by men; and this is supplemented by some anecdotal evidence. (MacKinnon mentions a sexual murder committed in a manner that had been depicted in a magazine published eight months earlier, though there is no evidence that the murderer had seen the magazine.) MacKinnon also tries to get some mileage from the decision invalidating the Indianapolis ordinance by noting that the decision accepted the ordinance's premise that pornography harms women. In fact the premise was accepted only for the sake of argument; the court held that the ordinance would be unconstitutional even if the premise were true.

MacKinnon's treatment of the central issue of pornography as she herself poses it—the harm that pornography does to women—is shockingly casual. Much of her evidence is anecdotal, and in a nation of 260 million people, anecdotes are a weak form of evidence. She does not acknowledge the limited scope of the scientific evidence that she does cite; this evidence, which concerns the attitudinal and behavioral effects of pornography, is largely limited to the violent kind, but she wants to forbid the nonviolent kind as well. She also does not consider the counterevidence, which is extensive. It includes such facts as that Denmark, which has no law against even hard-core pornography, and Japan, in which pornography is sold freely and is dominated by rape and bondage scenes, have rates of rape far lower than the United States; that the rate of rape in the United States has been falling even as the amount of hard-core pornography has undoubtedly increased because of the videocassette; and that women's status tends to be lower in societies that repress pornography (such as those of the Islamic nations) than in societies that do not (such as those of the Scandinavian nations). And some of MacKinnon's conservative allies in the fight against pornography believe that pornography deflects men from intercourse to masturbation (in MacKinnon's own words, “pornography is masturbation material”) rather than spurring them to rape. Pornography may be a substitute for intercourse (including rape) rather than a complement to it.

It would be a mistake to conclude that pornography has been shown to be harmless. The evidence is inconclusive. My point is that our present knowledge does not warrant a confident conclusion that eliminating or, more realistically, reducing the quantity of pornography would either reduce or increase the incidence of sex crimes and other mistreatments of women. It is especially reckless to conclude, as MacKinnon does, without a careful discussion of the state of the evidence, that pornography in the United States today is a major cause of harm to women. The issue of magnitude is critical; it would not pay to devote substantial social resources to extirpating a minor source of harm.

It is not on behalf of consumers of pornography (not all of them heterosexual males) who will be deprived of a source of possibly harmless pleasure that I raise this question. My concern is that she is proposing an enormously ambitious and possibly quixotic program of law enforcement in order to bring about what for all anyone knows might be only a small improvement, and perhaps no improvement at all, in the life of American women. Not even to discuss this question is the cardinal weakness of the book.

MacKinnon's blindness to the fact that hard-core pornography is already illegal in this country largely vitiates her emphasis on the brutal treatment of pornographic models and actresses. For that is exactly the sort of treatment that one expects in an illegal market. When an economic activity is placed outside the protection of the law—as we know from Prohibition, prostitution, the campaign against drugs and the employment of illegal immigrants—the participants in that activity will resort to threats and violence in lieu of the contractual and other legal remedies denied them. The pimp is an artifact of the illegality of prostitution, and the exploitation of pornographic actresses and models by their employers is parallel to the exploitation of illegal immigrant labor by their employers. These women would be better off if all pornography were legal.

MacKinnon misses another critical distinction when she complains about the asymmetrical treatment of pornography on the one hand, and the verbal sexual harassment of women in the workplace on the other. If words are actionable harm in the latter context, why then, she asks, not in the former context, too? An obvious answer is overlooked. In the case of harassment, the words are aimed at a woman; she is the target of a verbal assault. In the case of pornography, the words (pictures are MacKinnon's actual concern) are aimed at a man, the reader or the viewer of the pornography, and the aim is to please, not to insult or to intimidate. Since a woman is not the intended (and rarely the actual) viewer or reader, she can be harmed only if the voluntary male consumer of the pornography is incited by it to mistreat a woman. The effect is indirect, and whether it is substantial is the essential issue that MacKinnon fails to confront. She is also too facile in equating child pornography with adult pornography on the grounds that the objection to child pornography is the inequality between children and adults, and that adult pornography reflects a similar inequality between women and men.

MacKinnon wants to associate women with other traditional victim groups, specifically blacks and Jews. She compares pornography to the shouting of racial epithets and to Nazi marches and Holocaust revisionism, all of which are expressive sources of pain. But these comparisons, especially the last one, cause her to equivocate over the difference between the form of expression and its content. Most of the time she treats pornography as something that bypasses the rational intellect (the “message is addressed directly to the penis”), and misogynistic messages not conveyed by sexually explicit representations then fall outside its scope; “pornography [is] more than mere words, while the words of communism are only words.” Mere words are privileged. But then she applauds Canada for punishing the propagation of claims that the Holocaust did not occur, even though these claims, like “the words of communism, are only words.”

In the same vein MacKinnon observes that “the current legal distinction between screaming ‘go kill that nigger’ and advocating the view that African-Americans should be eliminated from parts of the United States needs to be seriously reconsidered.” But if the line between incitement and advocacy, and between obscenity and misogyny, is erased, then censorship will become a pervasive feature of American public life. And the Communist case will then be an easy one, communism having done more harm to more people than pornography, and so I cannot understand why MacKinnon regards the protection of the free speech of Communists as one of the shining moments of American constitutionalism.

She approves of the decision in New York Times v. Sullivan, which limited the right of public figures to sue for defamation, because the public figures involved were white racists; if they had been black, they should have been allowed to sue. She is derisive about the refusal of the courts to distinguish between oppressor and oppressed, and to grant more rights to the latter. And yet it is not always clear which is which. Some people believe that criminals, who in this country are disproportionately black, and who are, of course, the perpetrators of rape and other sex crimes, are an oppressed group. German judges before 1945 thought that Germans were an oppressed group and that Jews were their oppressors; and Stalin exterminated so-called oppressors by the tens of millions. In the United States today, Jews are being harmed by affirmative action for blacks and other favored minorities in higher education; concerns are voiced about the return of the numerus clausus and its effect on American Jews' sense of security. Would it really be a good thing for judges to pick their favorite groups, pronounce them oppressed and award them extra rights? Would it help women?

And just how oppressed are women in the United States in 1993? Can MacKinnon be oblivious to the changes in the status of women that have occurred in recent years, changes to which she has contributed through her tireless advocacy? Is she stuck in a time warp? Is pornography really what is holding women back? Can it be pornography that is responsible, as she suggests, for “femininity”? If censorship is the answer to women's problems, shouldn't we censor the forms of femininity-encouraging expression that women actually watch, such as television commercials in which housewives wax kitchen floors happily, or Doris Day movies?

The enormous increase in the number of working women has focused public attention on employment conditions, such as sexual harassment and the lack of generous provisions for child care and maternity leave, that disfavor female employees. That increase, both a cause and an effect of women's increasing emancipation from traditional household duties, has also increased women's demands for sexual freedom and reproductive autonomy, hence for secure protection against rape and for the right of abortion. Less dependent on men, better educated, better paid, more conscious of alternatives to marriage, women have become politically more assertive, more powerful. And so politicians cater to them; and some women are themselves influential politicians. The result has been a flood of laws, including rape-shield laws, laws criminalizing marital rape, laws forbidding sexual harassment and discrimination, all designed to help women who want sexual freedom, reproductive autonomy and successful careers.

There is still oppression of individual women in America. (Although MacKinnon's estimate that 38 percent of American women were sexually abused as children is probably a twofold exaggeration, the lower figure is still a shocker.) MacKinnon's conception of American women as eternal victims, cowed, fearful, intimidated and silenced—by pornography, yet—may once have been true, though I greatly doubt it; but today it is certainly false and patronizing. I do not know what has caused MacKinnon to become, and, more surprisingly, to remain, so obsessed with pornography, and so zealous for censorship. But let us not sacrifice our civil liberties on the altar of her obsession.