Return to syllabus

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** Professor of Law, The University of Michigan Law School, co-author with

Andrea Dworkin of civil rights ordinances recognizing pornography as a sex

equality violation.

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SUMMARY:

... Like a trojan horse, each new communication technology -- the printing

press, the camera, the moving picture, the tape recorder, the telephone, the

television, the video recorder, the VCR, cable, and, now, the computer -- has

brought pornography with it. ... The Marquis de Sade, seminal pornographer, was

jailed for sexual atrocities he committed against women, acts which included the

same rape and torture his pornography celebrates. ... What makes VR (virtual

reality) more real than RL (real life)? Why is sexual violation in cyberspace

taken more seriously, seen as real, when the same pornography elsewhere in

social life has been widely passed off as harmless? Why did it take the Internet

to make the harm of coerced pornography real enough to produce an indictment for

an act against a woman for the first time? What is -- and will be -- the legal

and social relation between telecommunicated pornography on computer networks --

the Internet, Usenet, World Wide Web, commercial and personal bulletin boards --

and the rest of social life? The Carnegie Mellon study provides a rich context

of data and analysis in which to consider these questions. ... One feature of

computer network pornography that appears to distinguish it from the rest of the

pornography market is the fact that it is distributed free of charge. ...

TEXT:

[*1959]

Like a trojan horse, each new communication technology -- the printing press,

the camera, the moving picture, the tape recorder, the telephone, the

television, the video recorder, the VCR, cable, and, now, the computer -- has

brought pornography with it. Pornography has proliferated with each new tool,

democratizing what had been a more elite possession and obsession, spreading the

sexual abuse required for its making and promoted through its use. n1 Ever more

women and children have had to be used ever more abusively in ever more social

sites and human relationships to feed the appetite that each development

stimulates and profits from filling. More women have had to live out more of

their lives in environments pornography has made. As pornography saturates

social life, it also becomes more visible and legitimate, hence less visible as

pornography. Always the abuse intensifies and deepens, becoming all the time

more intrusive, more hidden, less accountable, with fewer islands of respite. In

the process, pornography acquires the social and legal status of its latest

technological vehicle, appearing not as pornography, but as books, photographs,

films, videos, television programs, and images in cyberspace.

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n1 For documentation of the harm of pornography, see generally U.S. DEP'T OF

JUSTICE, ATT'Y GEN. COMM'N ON PORNOGRAPHY: FINAL REPORT (1986); Public Hearing

on Ordinances to Add Pornography as Discrimination against Women, Minneapolis

City Council Government Operations Committee (Dec. 12-13, 1983) (on file with

The Georgetown Law Journal); Diana E.H. Russell, Pornography and Rape: A Causal

Model, 9 POL. PSYCHOL. 41 (1988); Mimi H. Silbert & Ayala M. Pines, Pornography

and Sexual Abuse of Women, 10 SEX ROLES 857 (1984); Evelyn K. Sommers & James

V.P. Check, An Empirical Investigation of the Role of Pornography in the Verbal

and Physical Abuse of Women, 2 VIOLENCE & VICTIMS 189 (1987).

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Pornography on computer networks is the latest wave in this tide. Pornography in

cyberspace is pornography in society -- just broader, deeper, worse, and more of

it. Pornography is a technologically sophisticated traffic in women;

electronically communicated pornography trafficks women in a yet more

sophisticated form. But as new technologies open new avenues for exploitation,

they can also open new avenues for resistance. As pornography comes ever more

into the open, crossing new boundaries, opening new markets and pioneering new

harms, it also opens itself to new scrutiny.

Carnegie Mellon's landmark study of pornography in cyberspace is also [*1960]

the first massive study of the consumption of pornography in a natural setting.

Access to the users using pornography was made possible by the same expanded

access to pornography itself that computer networks provide. As pornography

invades offices, homes, and schools through upscale computer technology, and the

age of the average consumer potentially drops below its already dropping level,

Carnegie Mellon's study signals that the possibilities for exposing pornography

are keeping pace with its takeover of public and private spaces. The

pornographers are clearly betting that they can survive the light. For those who

are hoping they cannot, this new technology, like each one before it, merely

raises in a new domain the same questions pornography has always raised: what

will it take for pornography to be seen for what it is? what will it take to

stop it?

At the same time, like each new technology before it, computer networks shift

and focus the social and legal issues raised by pornography in specific ways.

Like pornography everywhere else, before and after it becomes Carnegie Mellon's

"images" in cyberspace, it is women's lives. Women have resisted being made into

pornography, being publicly sexually violated for the pleasure and profit of

others, long before the materials made using them hit computer screens. And

while resistance to pornography from the standpoint of the women in it has

centered on visual materials, real women have often posed for the words as well,

in the sense that the men who wrote them often did what they wrote about. The

Marquis de Sade, seminal pornographer, was jailed for sexual atrocities he

committed against women, acts which included the same rape and torture his

pornography celebrates. n2 One wonders how far most pornographers' imagination

has extended beyond their experience.

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n2 See ANDREA DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN 70-100 (1989). Dworkin

writes, "[Sade's] life and writing were of a piece, a whole cloth soaked in the

blood of women imagined and real." Id. at 70. Sade's pornography also celebrates

murder.

One new development in computer technology will shed some light on the

centrality of the use of real women to pornography's sexual effectiveness.

"Interactive" pornography allows customers to customize on screen the desired

stimuli, both visual and auditory, without the acts first being performed on a

live woman. If this form of pornography works sexually, pornography could end as

a slave trade, while its harms to other women throughout society continue. The

more active relation of the user to the material, combined with freeing

production from the limitation of human flesh, could escalate the harms done

through consumption. Taking this a step further, do we want "mirror world"

pornography? See generally DAVID H. GELERNTER, MIRROR WORLDS, OR, THE DAY

SOFTWARE PUTS THE UNIVERSE IN A SHOEBOX (1991).

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Something is done when women are used to make pornography, and then something is

done again and again to those same women whenever their violation -- their body,

face, name, whatever of identity and dignity can be stolen and sold as sex -- is

sexually enjoyed, in whatever medium. Most pornography, if circulated in a

working environment, would be actionable as sexual harassment. n3 If the

materials were non-sexual libel, or [*1961] the persons involved were

understood to be persons rather than prostitutes or sex or "some women" who are

"like that," the damage done would be clear. For insisting that a woman is

violated every time she is sexually trafficked without her permission, by word

or celluloid or databyte, for insisting that each act of sexual consumption

predicated on the unfree use of a person damages that person, those who oppose

pornography's harms have essentially been accused of witchcraft, or at least of

a voodoo sensibility. Pornography in the marketplace of life where there are no

equality laws -- in the world of books, photographs, films, videos, phone sex,

and cable television -- has fallen into a reality warp. Harmless fantasy, it is

called.

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n3 See Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1526-27

(M.D. Fla. 1991) (pornography at work actionable as sexual harassment). Robinson

was settled after appeal was argued before the Eleventh Circuit. But cf. Rabidue

v. Osceola Refining Co., 805 F.2d 611, 622 (6th Cir. 1986), cert. denied, 481

U.S. 1041 (1987) (pornography at work not actionable as sexual harassment

because "[t]he sexually oriented poster displays had a de minimis effect on the

plaintiff's work environment when considered in the context of a society that

condones and publicly features and commercially exploits open displays . . . ."

of such materials).

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Then, in 1995, Michigan undergraduate Jake Baker sent verbal snuff pornography

using a woman undergraduate's name and physical description over the Internet.

n4 Verbal pornographers have always had the tools visual pornographers are only

beginning to develop that allow them to make pornography, including women

presented being killed, without actually doing it to real women. Still they use

real women, presumably for sexual reasons. Jake Baker did not first commit the

rape, torture, and murder he wrote sexually about doing. Because he "fantasized"

time, place, and manner of execution into the ether of e-mail, he was arrested

and jailed before he could try. He did use the identity of a woman he had seen

to make pornography of those acts, and then pimped her on the bulletin board

alt.sex.stories, if experience is any guide, for men to masturbate over. With

its estimated 270,000 consumers, he had, for a pornographer manque,

unprecedented access to spreading his harm. And the FBI had unprecedented access

to him.

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n4 Indictment and Superseding Indictment, Criminal No. 95-80106, United States

District Court, Eastern District of Michigan, Southern Division, Feb. 14, 1995

and March 15, 1995. See also Kaethe Hoffer, Jake Baker's Pornography is a real

threat to real women, DET. FREE PRESS, Mar. 20, 1995, at A11. As we go to press,

the indictment against Jake Baker was dismissed because the facts were not

considered to pose a true threat by legal standards. United States v. Baker, No.

95-80106, slip. op. (E.D. Mich. June 21, 1995) (opinion of Cohn, J.). Appeal is

contemplated.

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Federal authorities investigated and prosecuted Jake Baker for interstate

transmission of a threat. He was not prosecuted for fantasizing. He was

prosecuted for doing something, an act which embodied a clear notion of what

else he was going to do. A threat is an act in itself, the nature of which is a

promise of further action. Clearly, a man's threat is more credible than a

woman's complaint. What he said he was going to do was [*1962] more credible

than everything all the women who have ever said they were used in pornography

against their will have said that men did do to them. Jake Baker's trial, if it

comes to that, will be based on what "he said;" no "she said" is involved. And

even though names are only words, making pornography of a name was seen as part

of doing real harm to a real person. n5 We still live in a textual world in

which suddenly, if perhaps only momentarily, this injury became visible, real.

The point is: it took putting pornography in cyberspace to produce this.

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n5 It may be that it was more possible to see this woman as harmed because she

was not physically sexually violated. Women lose human status when sexually

assaulted, hence tend to be seen not as harmed, but as treated appropriately to

their less-than-human condition. On this analysis, this woman's name, having

been made into pornography, lost its human status.

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What makes VR (virtual reality) more real than RL (real life)? Why is sexual

violation in cyberspace taken more seriously, seen as real, when the same

pornography elsewhere in social life has been widely passed off as harmless? n6

Why did it take the Internet to make the harm of coerced pornography real enough

to produce an indictment for an act against a woman for the first time? What is

-- and will be -- the legal and social relation between telecommunicated

pornography on computer networks -- the Internet, Usenet, World Wide Web,

commercial and personal bulletin boards -- and the rest of social life? The

Carnegie Mellon study provides a rich context of data and analysis in which to

consider these questions. The study also raises new possibilities for resistance

by documenting, with unprecedented scientific precision and definitiveness, who

is using whom, where, when, and how.

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n6 One episode illustrates this. A digital rapist took over a woman's online

identity, raped and otherwise tortured her, and made her behave as though she

enjoyed it. This was widely termed "a rape in cyberspace," not a fantasy of a

rape, or a story of a rape, or a discussion of a rape in cyberspace. Julian

Dibbell, A Rape in Cyberspace, VILLAGE VOICE, Dec. 21, 1993, at 36. Netniks have

suggested to me that verbal rape is taken seriously when it occurs in cyberspace

because the community itself is constructed of words. I am not sure what they

think other human communities are constructed of. They have also suggested that,

in a virtual community, all are witnesses to rape. But consumers of visual

pornography are also witnesses to rape and only enjoy it. Why virtual rape is

more real than actual rape remains the question.

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That pornography on computers is part of real life, not apart from it, is made

indelibly clear by the Carnegie Mellon study. The content, consumers, and

patterns documented in this study are the same as those long observed in the

pornography industry and in its tracks through the rest of society. n7 The

research team documents beyond question the simplest and most obvious, if some

of the most contested, facts. Overwhelmingly, it is men who use pornography --

98.9% of these consumers, to be exact. n8 Even [*1963] many of the women who

use it, Carnegie Mellon found, are paid by pornographers to be there, in order

to give men the impression, while online, that women enjoy women being violated.

n9 Women are disproportionately used in violating ways in pornography. More than

ninety-nine percent of all the bestiality pictures studied on the "Amateur

Action" bulletin board, for instance, present women having sex with animals, n10

in spite of the fact that nearly fifty percent of the pornography studied has

men in it. n11 The more violating the act, the more women have it committed

against them.

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n7 See generally DWORKIN, supra note 2; CATHARINE A. MACKINNON, ONLY WORDS

(1993).

n8 See Marty Rimm, Marketing Pornography on the Information Superhighway, 83

GEO. L.J. 1849, 1904-05 (1995) [hereinafter CMU Study].

n9 Id. at 1857 n.17.

n10 Id. at 1900; see also id. Figure 10.

n11 Id. at 1901.

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Moreover, the more violating the material, the more it is wanted, out of

proportion to supply. Sex with children is 6.9% by supply, 15.6% by demand. n12

The demand to see vaginal sex (not to be assumed harmless) approaches the

vanishing point (6.9% by supply, 4.6% by demand), n13 while the demand for women

vaginally penetrated by animals on the "Amateur Action" bulletin board

approaches fifty percent of all visual bestiality material. n14 When a woman is

marketed being intensively physically harmed, consumer demand doubles; fellatio

gets a lukewarm response, but downloads double for "choking." n15 Amateur Action

BBS, which distributes the most materials in which physical harm is shown being

inflicted on women, is the market leader. n16 The Carnegie Mellon study

disproves allegations that those who oppose the pornography industry have

distorted its largely benign reality through "the use of highly selected

examples." n17 By focusing on pornography as used, the Carnegie Mellon results

also counter the view that "most commercial pornography . . . is not violent."

n18

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n12 See id. at 1891 Table 5; see also id. at 1891 Figure 7.

n13 Id. at 1892.

n14 Id. at 1900 Figure 10.

n15 Id. at 1899.

n16 Hopefully, future studies of the same database will pursue the longitudinal

dimension of user patterns, likely confirming what experiments have found and

predicted: men enter the market at the "soft" end and quickly escalate sexually

to using the "harder" or more intrusive and violating materials. See Dolf

Zillman, Effects of Prolonged Consumption of Pornography, in PORNOGRAPHY 127,

144-45 (Dolf Zillman & Jennings Bryant eds., 1989) (two weeks into pornography

study, participants who had been watching "common" pornography, largely defined

as not showing sexual aggression, regularly chose to watch "less common" and

more violent forms). See also WILLIAM O'DONAHUE & JAMES GEER, HANDBOOK OF SEXUAL

DYSFUNCTIONS 67-68, 81 (1993). The Carnegie Mellon study also poses the

potential, with all its dangers to privacy, that the prior pornography

consumption of a campus rapist might be able to be studied after the fact of the

rape. See CMU Study, supra note 8, at 1911-12.

n17 Nan D. Hunter & Sylvia A. Law, Brief Amici Curiae of Feminist

Anti-Censorship Taskforce, et al. in American Booksellers Association v. Hudnut,

21 U. MICH. J.L. REF. 69, 100 n.2 (1987).

n18 Id.

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Pornography is a huge amount of the activity on the Internet, which aspires to

be a universal network to unite the world. When men make new [*1964]

communities, n19 they bring their pornography with them. More than that, they

bond through it. Computer networks are not only metaphors for society, they

track it and happen within it. Pornography takes up much of the Internet's

collective brain. Over eighty percent of all pictures available on the Usenet

are pornography. n20 Three-quarters of the total space occupied by the visual

boards, the lion's share of multimedia activity, is pornography. n21 The

pornography bulletin boards, although a small percentage of the BBS overall, are

disproportionately accessed. Use of the most violent and dehumanizing materials

is not only the most frequent, n22 it is also geographically widespread. The

research team documents consumption of such materials by men in at least 2000

cities in all 50 states of the U.S., most Canadian provinces, where it is more

clearly illegal, and thirty-nine foreign countries and territories. n23

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n19 See generally HOWARD RHEINGOLD, THE VIRTUAL COMMUNITY: HOMESTEADING ON THE

ELECTRONIC FRONTIER (1993) (describing the social aggregate of relationships

that forms out of webs of exchanges in cyberspace).

n20 CMU Study, supra note 8, at 1867, 1914.

n21 Id. at 1874. It is unfortunately typical of legal discussions to manage to

overlook such huge proportions of reality when that reality is pornography. See,

e.g., Symposium, Emerging Media Technology and the First Amendment, 104 YALE

L.J. 1613 (1995) (discussing computer networks extensively and pornography on

them virtually not at all, the closest being a passing reference at 1695 n.43).

n22 This is deducible from the data in Table 5, although the categories used

make this less than conclusive.

n23 CMU Study, supra note 8, at 1854, 1895.

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Why it was necessary to log on to see what has been just down the street all

along is an interesting question. The greatest achievement of the Carnegie

Mellon study lies in simply noticing what is there. Apparently the shift in

frame from books and videos to cyberspace has had the effect of revealing to

simple empirical documentation that what is done to women in pornography is not

a fact of nature or an act of liberation or a private peccadillo to be

respectfully skirted but an on-going social atrocity. The significance of this

recognition, implicit in the entire study, cannot be overstated. Simply treating

the content of pornography as a serious database for detailed empirical

measurement is almost unprecedented. The refusal to back off from the findings

represented by the study's use of at least some concrete descriptive categories

and many illustrative quotations is equally remarkable. The political

epistemology of this moment is that cyberspace seems to have made possible a

clarity of perspective, a reframing of this form of violence against women, a

getting out of society in order to get into it, that no mental trip to Mars and

back has previously accomplished.

Computer networks do not, as the research team suggests, market unusually

abusive materials and thus "redefin[e] the pornographic landscape." n24 [*1965]

They reveal it. The study expresses occasional skepticism about the fit between

pornography in cyberspace and pornography in the rest of the world. For

instance, it states that the most abusive pornography (e.g., bestiality and

torture) and child pornography are much easier to get online than otherwise. n25

This confuses what is acknowledged as being acceptable with what is actually

accepted in the sense of being widely used. Abusive pornography using adult

women is readily available, and anyone who wants child pornography can get it

with a little effort. Computer networks are contributing significantly to abuse

of women and children by facilitating access to such pornography, expanding its

reach. However, the fact that these materials become more readily available,

while they remain illegal, even highly illegal, does not mean that they are not,

in fact, otherwise already available. Again, electronic communication makes more

visible to scrutiny a reality that was already pervasive.

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n24 Id. at 1906; see also id. nn.130-131.

n25 See id. at 1857, 1892, 1906.

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Some viewers may also be skeptical that the individuals presented as children in

computer pornography are really children. More likely, pornographers are using

children when they say they are not. This will become much more common after the

U.S. Supreme Court's recent ruling in X-Citement Video, which held that, if

pornographers do not know that the children they use are children, the

pornography made using them is legal. n26 This accomplishes an effective drop in

the age of consent for use in child pornography to age of physical maturation --

for some girls, 10 or 11 years old -- a change that pornographers, including

those on computer networks, can be predicted to exploit fully. In fact, the

research team documents extensive use of children for sex in this forum. n27

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n26 United States v. X-Citement Video, 115 S. Ct. 464, 471-72 (1994).

n27 See CMU Study, supra note 8, at 1902-03; see also id. Figures 7, 8, 9, 11.

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One feature of computer network pornography that appears to distinguish it from

the rest of the pornography market is the fact that it is distributed free of

charge. Actually, much child pornography is traded as well as sold. n28 A

primary form of the profit in pornography is sexual, pure [*1966] and simple.

Meantime, with computer networks now being used for trafficking, community

standards in yet another rapidly expanding elite are created that are toxic to

women's humanity and potentiating to male dominance, which has to be good for

business. The pornographers of organized crime are at work, with some of the

best technical minds money can buy, figuring out how to make money pimping women

in cyberspace. n29

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n28 See Exploited and Missing Children: Hearing Before the Subcomm. on Juvenile

Justice of the Senate Comm. on the Judiciary, 97th Cong., 2nd Sess. 39 (1982)

(statement of Dana E. Caro, Inspector-Deputy Asst. Dir., Criminal Investigative

Div., F.B.I.) ("It has been determined that the largest percentage of child

pornography available in the United States today was originally produced for the

self-gratification of the members of this culture and was not necessarily

produced for any commercial purpose. Pedophiles maintain correspondence and

exchange sexual [sic] explicit photographs with other members of this

subculture."); Albert H. Belanger et al., Typology of Sex Rings Exploiting

Children, in CHILD PORNOGRAPHY AND SEX RINGS 79 (Ann W. Burgess & Marieanne L.

Clark eds., 1984) (32 of 38 child pornography rings studied were either strictly

or partially producing materials for personal use); Gregory Loken, The Federal

Battle Against Child Sexual Exploitation: Proposals for Reform, 9 HARV. WOMEN'S

L.J. 105, 112 (1986).

n29 See South Pointe, The Adult Entertainment Company Adds Software Development

Team with Acquisition, PR NEWSWIRE, Nov. 3, 1994 (chronicling South Pointe's

purchase of Innovative Data Concepts, a high tech software developer); John R.

Wilke, Porn Broker: A Publicly Held Firm Turns X-Rated Videos Into a Hot

Business, WALL ST. J., July 11, 1994, at A1 (describing Kenneth Guarino, South

Pointe's largest shareholder (and until July 28, 1994, its chairman, CEO and

director) and long-time pornographer with government-alleged links to Gambino

crime family).

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Each new technology raises anew the question of the adequacy of legal

approaches. Cyberspace makes vivid, if it was not already, the inefficacy of

current obscenity law, which coexists with this exploding market in human abuse,

as it has with every other means of sexual trafficking. Just as the harms

pornography does are no different online than anywhere else, the legal approach

taken to them need be no different. It need only be effective. Computer networks

present a newly democratic, yet newly elite, mass form of pornography becoming

less elite by the minute, just as pornography always has. In whatever form

pornography exists, its harms remain harms to the equality of women, so it is

through addressing these harms that pornography can be confronted. Civil rights

legislation designed to remedy pornography's harms at their point of impact is

well suited to this task. n30

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n30 See ANDREA DWORKIN & CATHARINE A. MACKINNON, PORNOGRAPHY AND CIVIL RIGHTS: A

NEW DAY FOR WOMEN'S EQUALITY (1988) for a detailed discussion of this approach

and examples of civil laws that could be used against injuries proven to be

produced by pornography, however trafficked.

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Computer technology does pose newly complex issues of anonymity and privacy.

Unidentified speech has always presented dangers of harassment and reputational

destruction but never before on this scale. n31 Privacy has always been fragile,

but never before has it been possible to find out what a person is reading while

they are reading it. Technical problems of proving liability and measuring

damages also exist, although now that the pornographers are figuring out how to

get paid for pornography in cyberspace, many of these problems will be solved,

as the transactions will leave a trace. Once a legal approach through actual

harms is taken, accountability for pornography on computer networks poses no new

conceptual problems, [*1967] only practical problems of delivery. n32 The

legal problem is, women hurt by pornography have no rights against it anywhere.

If circulating pornography in this new, still legitimate, forum reframes the

same old abuse to alter that impunity, this new technology will be the first to

be revolutionary.

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n31 See McIntyre v. Ohio Election Comm'n, 115 S. Ct. 1511 (1995) (speech value

of anonymity); Comment, Who are You? Identity and Anonymity in Cyberspace, 55 U.

PITT. L. REV. 1177, 1185-94 (1994) (discussing the historical protection of

anonymity in law and the difficulties of continuing that protection in

cyberspace); Lindsay Van Gelder, The Strange Case of the Electronic Lover, Ms.

MAG., Oct. 1985, at 94 (deception through anonymity). Anonymous remailers raise

special difficulties.

n32 This seems implicit in Eugene Volokh's observation that while "the advent of

electronic communications may change how child pornography is distributed, . . .

I don't see how it would change the rules relating to child pornography." Eugene

Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1844 (1995)

(footnote omitted). This is because existing child pornography laws, like the

sex equality approach, address the harm done by the materials, making how they

are trafficked incidental. Volokh does not discuss pornography of adult women.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Carnegie Mellon research team has had the vision to see, the technical

acumen to capture, and the courage to expose what is there. Beyond further

information to be analyzed and organizing opportunities to be pursued, the

question the study poses for pornography in cyberspace is the same as

pornography poses everywhere else: whether anything will be done about it.

Document 21 of 65.

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