71 B.U. L. Rev. 793 (1991)
Pornography as Defemation and Discrimination

handle is hein.journals/bulr71 and id is 803 raw text is: PORNOGRAPHY AS DEFAMATION AND
DISCRIMINATIONt
CATHARINE A. MACKINNON*
What matters for a legal system is what words do, not what they
say ....1
A few years back, during a referendum campaign in Cambridge, Massa-
chusetts, on the civil rights ordinance against pornography that Andrea
Dworkin and I conceived,2 a xeroxed leaflet was placed on cars and tele-
phone poles in several neighborhoods late one night. Over a large scrawled
black swastika, it said: Help stop commie kike lezzie cunts from telling us
what we can read. This little triumph of economy of abuse referred, of
course, to the supposed politics, religious heritage, sexuality, and gender of
the ordinance's proponents, and made the further quaint assumption that
consuming pornography is reading.
While we absorbed this and pondered what to do, to our astonishment the
police decided that a crime had been committed and confiscated most of the
leaflets before morning. We had forgotten that Massachusetts has a law
against group defamation.' Freedom of speech in Massachusetts seems to
t © Catharine A. MacKinnon 1991.
* Professor, University of Michigan Law School. This lecture was given in the Boston
University School of Law Distinguished Lecturer Series on February 16, 1990. It was
delivered in a different form at the Hofstra University Conference on Group Defamation
& Freedom of Speech, April, 1988. The comments of Owen Fiss and Burke Marshall
were especially helpful, as was the valuable research assistance of Carmela Castellano.
The contributions of Andrea Dworkin, as always, were formative.
1 Edward J. Bloustein, Holmes: His First Amendment Theory and His Pragmatist Bent,
40 RUTGERS L. REV. 283, 299 (1988) (discussing Oliver Wendell Holmes's approach to
freedom of speech).
2 The ordinance received 42% of the vote. The Nation, L.A. TIMES, Nov. 12, 1985, at
2 (reporting that 9,419 people voted for the measure and 13,031 against it, while 1,931
voters abstained).
3   Whoever publishes any false written or printed material with intent to
maliciously promote hatred of any group of persons in the commonwealth because
of race, color or religion shall be guilty of libel and shall be punished by a fine of not
more than one thousand dollars or by imprisonment for not more than one year, or
both. The defendant may prove in defense that the publication was privileged or was
not malicious. Prosecutions under this section shall be instituted only by the
attorney general or by the district attorney for the district in which the alleged libel
was published.
MASS. GEN. LAWS ANN. ch. 272, § 98C (West 1990).

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