Beyond Labels: Pornography, Violence, and Free Speech

Pacillo, Edith L.

doi:10.1007/978-3-030-05989-7_17

Edith L. Pacillo⁹

Part of the book series: Library of Public Policy and Public Administration ((LPPP,volume 12))

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Abstract

A publisher publishes a manual on how to murder. An individual reads the manual, then murders three people. Does the First Amendment shield the publisher from civil liability for the murders? One court has answered, “No.”A publisher publishes a manual on how to rape. An individual reads the manual and rapes a woman. Does the First Amendment shield the publisher from civil liability for the rape? Courts have suggested that the answer should be “yes.” The only significant difference between these scenarios is that the murder manual has no redeeming social value that requires First Amendment protection, while the fact that pornography leads to violence against women merely shows that it is worthy of protection—which is ironic and unjust. Rice v. Paladin Enterprises provides a new approach for those who seek compensation for injuries when perpetrators use instructional publications as an inspiration for sexual violence. Rice v. Paladin Enterprises holds that the publisher of the how-to style murder manual, Hit Man: A Technical Manual for Independent Contractors, was not entitled to First Amendment protection when a person used the manual to commit three murders. This ruling cleared the way for the publisher to be held civilly liable for aiding and abetting three murders.

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Notes

1.
128 F.3d 233 (4th Cir. 1997).
2.
963 F.2d 962 (7th Cir.1992).
3.
814 F.2d 1017 (5th Cir. 1987).
4.
Ibid. at 1019.
5.
Ibid. at 1020.
6.
324 N.W.2d 346 (1982).
7.
Ibid. at 348.
8.
74 Cal. App.3d 383, 388 (1977). Inexplicably, the court referred to this as an “artificial rape.” It is unclear who the court was quoting.
9.
State v. Pennell, 1989 WL 112557 (Sup. Ct. Del. 1989).
10.
It is not possible to find a consensus on the meaning of the label “feminism.” Merriam-Webster dictionary provides two definitions: “the theory of the political, economic, and social equality of the sexes,” and “organized activity on behalf of women’s rights and interests.” (www.merriam-webster.com/dictionary/feminism). Wikipedia enumerates at least five different “types” of feminism. (en.wikipedia.org/wiki/Feminism#Late_twentieth_and_early_twenty-first_centuries). It is not surprising, then, that many scholars who identify themselves as “feminist” do not agree on how to view pornography through a feminist lens. In summary, liberal feminism seeks to give women an equal voice within existing patriarchy in the hopes of exposing the sexism of patriarchy; radical feminism argues for an altogether new jurisprudence, rather than incorporating women’s views into the existing patriarchal structure. (Pacillo 1994, n10 and 11). Liberal feminists see pornography as potentially sexually liberating for women. (Pacillo 1994 n2). Radical feminists see pornography as a symptom of the patriarchal degradation of women that perpetuates myths that women enjoy and deserve sexual violence. (Pacillo 1994 n4). Some feminists have sought to bridge the gap with compromise philosophies. (Frug 1992; Keller 1993). No matter how one defines “feminism,” or what feminist philosophy one adopts, however, the goal of ending violence against women appears to be a common thread. Accordingly, the analysis that I offer here does not require a liberal/radical label. Instead, I offer a pragmatic analysis of how publishers might be held liable in specific cases, based on the unique facts of individual cases.
11.
The MacKinnon/Dworkin model civil rights ordinance defined pornography as:
- The graphic sexually explicit subordination of women through pictures and/or words that also includes one or more of the following: (i) women are presented dehumanized as sexual objects, things, or commodities; or (ii) women are presented as sexual objects who enjoy pain or humiliation; or (iii) women are presented as sexual objects who experience sexual pleasure in being raped; or (iv) women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or (v) women are presented in postures of sexual submission, servility or display; or (vi) women’s body parts-including but not limited to vaginas, breasts, and buttocks-are exhibited, such that women are reduced to those parts; or (vii) women are presented as whores by nature; or (viii) women are presented being penetrated by objects or animals; or (ix) women are presented in scenarios of degradation, injury, torture, shown as filthy or inferior, bleeding, bruised or hurt in a context that makes these conditions sexual.
- MacKinnon (1985).
- For other attempts to define pornography, see Sunstein (1986) and Keller (1993).
12.
The MacKinnon/Dworkin draft ordinance is arguably the most high-profile attempt to codify regulation of pornography. Others exist as well. For example, see, Persellin (2001), Sweet (1994), Dixon (2011), and Wong (2016), Pornography Victims Compensation Act S. 983 102d Cong., 1st Sess § 3(a)(1991); Violence Against WomenAct of 1994, Public Law 103–322, U.S. Statutes at Large 108 (1994): 1902.
13.
For summaries of the social science research on the effects of pornography, see Sweet (1994), Freedman (1996), Ford (1997), Fraytak (2001), and Hald et al. (2010).
14.
Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C.L. L. Rev. 1(1985).
15.
771 F.2d 323 (7th Cir. 1985), aff’d 475 U.S. 1001 (1986).
16.
Ibid. at 329 (7th Cir.1985).
17.
Ibid.
18.
For a thorough description of these categories, see Balkin (2000).
19.
395 U.S. 444 (1969).
20.
Id. at 449.
21.
414 U.S. 105 (1973).
22.
Id. At 108–09.
23.
Herceg v. Hustler Magazine, Inc., 814 F2d 1017 (5th Cir 1987); Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067 (Mass.1989); Davidson v. Time Warner, Inc., No. Civ. A. V-94-006, 1997 WL 405907, at *21 (S.D. Tex. Mar. 31, 1997).
24.
Weirum v. RKO General, Inc. 539 P.2d 36 (Cal. 1975); Hyde v. City of Columbia, 637 S.W.2d 251 (Mo. Ct. App. 1982), cert. denied, 459 U.S. 1226 (1983).
25.
DeFilippo v. National Broadcasting Company, Inc., 763 F. Supp. 1144, 1145 (M.D.Ga 1991).
26.
See, e.g., Waller v. Osbourne, 763 F.Supp.1144 (1991); Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067 (Mass.1989); McCollum v. CBS Inc., 249 Cal.Rptr. 187 (1988); Olivia N. v. National Broadcasting Co., 74 Cal.App.3d 383(1977); Zamora v. CBS Inc., 480 F. Supp 199 (S.D. Fla. 1979).
27.
128 F.3d 233 (1997), cert denied, 118 S.Ct. 1515 (1988).
28.
Adam Cohen. 1997. Murder by the Book. Time, Dec. 1, as quoted in Vansen (1998).
29.
Elizabeth A. McNamara et al. 1998. A Selective Survey of Current Issues Facing Book and Magazine Publishers. 516 Practising Law Institute: Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series 9. 13 as quoted in Vansen (1998).
30.
128 F.3d at 240.
31.
Ibid.
32.
Ibid.
33.
Ibid.
34.
Ibid. at 237.
35.
940 F. Supp. 836, 842 (D.Md. 1996), rev’d 128 F.3d 233 (4th Cir. 1997), cert denied, 118 S.Ct. 1515 (1988).
36.
Ibid.
37.
Ibid. at 848.
38.
Ibid. at 850; See also, Vansen (1998).
39.
128 F.3d at 233, 253.
40.
Ibid.
41.
Ibid.
42.
Ibid. at 236–240.
43.
Ibid. at 244.
44.
Ibid. at 250.
45.
Ibid. at 253. Paladin stipulated that the murderer followed Hit Man’s instructions for planning, executing, and attempting to cover up the murders, that, in marketing Hit Man, Paladin “intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes,” and that it “intended and had knowledge” that Hit Man actually “would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire,” and that, through publishing and selling Hit Man, it assisted in the perpetration of the very murders for which the victims’ families now attempt to hold Paladin civilly liable. Significantly, the court stated that, even without these stipulations, a reasonable jury could have concluded that Paladin assisted in the murders because the methods that the murderer uses “so closely paralleled” those in the book, which the murderer followed “in painstaking detail.”
46.
Ibid. at 246.
47.
Ibid. at 245.
48.
Ibid. at 247–48.
49.
Ibid. at 249.
50.
Ibid.
51.
Ibid. at 250.
52.
Ibid.
53.
Ibid. at 256–257.
54.
814 F.2d 1017 (1987).
55.
Ibid. at 1020.
56.
Ibid.
57.
Ibid. at 1023.
58.
Ibid. at 1020. Justice Edith Jones questioned the trial court’s “novel” application of the incitement test, and declared it “wrong, insofar as it suggests that federal constitutional law rather than state law governs the....nature of the tort committed by Hustler.” Ibid. at 1031.
59.
Ibid. at 1023.
60.
Ibid. at 1022.
61.
Ibid at 1024.
62.
Ibid. at 1022.
63.
Ibid. at 1023.
64.
See, Sanders v. Acclaim Entertainment, Inc., 188 F.Supp.2d 1264 (2002).
65.
712 So.2d 681 (Ct. App. La. 1998)
66.
Wilson v. Paladin Enterprises, 186 F.Supp.2d 1140 (2001).
67.
Ibid. at 1142.
68.
Ibid.
69.
Ibid. at 1143.
70.
Ibid. at 1144.
71.
Ibid. at 1145.
72.
269 F.Supp.2d 1262 (Nev.2003).
73.
Ibid. at 1284.
74.
See, e.g., Sexual Minorities Uganda v. Lively, 960 F.Supp 2d 304 (2013); United States v. Buttorff, 572 F.2d 619 (1978).
75.
Restatement (Second) of Torts Section 876(b).
76.
705 F.2d 472 (1983).
77.
Ibid. at 487.
78.
Ibid. at 489.
79.
705 F.2d 472 (1982).
80.
Ibid. at 490.

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Attorney, Boise, ID, USA
Edith L. Pacillo

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Edith L. Pacillo
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Philosophy and Applied Ethics, Mount Saint Mary’s University, Los Angeles, CA, USA
Wanda Teays

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Pacillo, E.L. (2019). Beyond Labels: Pornography, Violence, and Free Speech. In: Teays, W. (eds) Analyzing Violence Against Women. Library of Public Policy and Public Administration, vol 12. Springer, Cham. https://doi.org/10.1007/978-3-030-05989-7_17

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DOI: https://doi.org/10.1007/978-3-030-05989-7_17
Published: 02 April 2019
Publisher Name: Springer, Cham
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