Women, Speech and Experience

As a harbinger of new first amendment doctrine, antipornography feminism offers a puzzling and fruitful study. Pitted against their erstwhile political allies and allying with otherwise adversaries, its adherents do not easily fall into any ideological map.¹ Against civil libertarianism they point to the inequality of speakers and subjects.² Against the postmodern discursive appropriation and subversion of speech, they remind us of the materiality of women's bodies.³ Both civil libertarianism and postmodernism, they claim, deal in imagined narratives, whereas the experience of women is felt, and painfully so. "It is for pornography, and not by the ideas in it, that women are hurt and penetrated, tied and gagged, undressed and genitally spread and sprayed with lacquer and water so sex pictures can be made," Catherine MacKinnon reminds us.⁴ Andrea Dworkin is even more explicit, describing pornography as "women turned into subhumans, beaver, pussy, body parts, genitals exposed, buttocks, breasts, mouths opened and throats penetrated, covered in semen, pissed on, shitted on, hung from light fixtures, tortured, maimed, bleeding, disemboweled, killed."⁵ The rhetorical thrust of such litanies of the violence of pornography can mirror the alleged assault of pornography.⁶ But this may be just their point — to remove speech from a level of abstraction to lived experience. Anti-pornography feminists are constructing a subject who is not an imagined person but a living, breathing, embodied person. As MacKinnon requests, "I am asking you to imagine that women's reality is real."⁷

In demanding regulation for this situated subject the measures of antipornography feminism lie in stark contrast to modern free speech doctrine. As has been demonstrated in insightful studies, theories of free speech were developed by social reformers as they faced repression of their speech. Such repressions include the Sedition Act of 1798, the widespread censorship of abolitionist speech, government measures taken during the Civil War and World War I, and the censorship of the Comstock Act.⁸ Reliance on civil libertarian theories of speech allowed these reformers to combat these measures. Because of the fraught history of freedom of speech, these same historians caution against those contemporary movements that would deviate from the protections of civil liberties.⁹

There is another, less-noticed, way in which antipornography feminists challenge modern free speech doctrine, and this lies in their attention to experience. The history of modern free speech doctrine is the history of the emergence of the abstract political subject whose rights preceded and were not deducible from any political or social considerations. This is evident in the contribution of the abolitionist movement to modern free speech doctrine.¹⁰ Early historiography on the abolitionist movement disparaged this tendency toward abstraction as anti-institutional.¹¹ Apart from the negative connotation, this charge is not unfounded. As William Lloyd Garrison said, "It is said that if you agitate the question, you divide the Union. Believe it or not; but should disunion follow, the fault will not be yours. You must perform your duty faithfully, fearlessly, promptly, and leave the consequences to God."¹² Religiously motivated abolitionists were limited only by higher principle, not by the dictates of the Constitution or the regulations of the government.

This fidelity to higher principle remained a rhetorical resource as abolitionists found themselves defending their own liberties as well as those of slaves. Initially an unpopular social movement, abolitionists were censored by the government and beset by abolitionist mobs. The denial of their antislavery petitions to Congress offers one illustration of the theorizing set into motion by a suppression of abolitionist speech. Abolitionists and their allies argued for the right to petition Congress to abolish slavery in the District of Columbia beginning in December 1835. Slaveholding interests interpreted the tolerance of slavery as a means of stabilizing the Union, and so they responded to any measures to discuss slavery as threats to stability, and Congress produced various gag rules by which it refused to consider those petitions. To overcome this obstacle, supporters of the petitions found a justification for the right of petition outside of the constitutional order and the stated concern for stability. They increasingly turned to abstract arguments, claiming that...