How porn became a civil right

We didn't always believe that Playboy was constitutionally protected. An expert explains how sexual rights evolved

Topics: Sex, Love and Sex, Pornography, Playboy,

How porn became a civil right (Credit: AP/Michael Schmelling)

How would you feel if your partner brought pornography home? That was the question history professor Leigh Ann Wheeler asked her students 15 years ago at the University of Minnesota. Almost every female student responded that she was “uncomfortable” with pornography, but that she wouldn’t violate her partner’s right to free speech by prohibiting it.

Wheeler, now a professor at Binghamton University, found this curious. In her new book, “How Sex Became a Civil Liberty,” she writes, “At the end of the 20th century, these students equated criticizing pornography and exercising control over their private space with advocating censorship, eliding, in the process, critical distinctions between private conduct and state action.” Just a few decades earlier it was unthinkable that sexual rights could be protected by the Constitution. But here her students were conflating “personal opinions, private relationships, and civil liberties,” she says.

How exactly did this happen? Wheeler attributes much of this to the American Civil Liberties Union. “The ACLU played a pivotal role in drawing the parameters of this nation’s disputes over sexuality,” she writes, and much of the book focuses on the organization’s influential role. It’s wonky stuff, to be sure, but the book does have a scandalous side: Wheeler takes a look at how the freewheeling sexual experimentation of the ACLU’s founding members in 1920 shaped the organization’s early political agenda surrounding sexual rights.

Although the book soberly catalogs the development of the concept of sexual rights, it also offers an unapologetic feminist critique of the extremes of sexual civil libertarianism, which often employs the same language of “privacy rights” as the opposition (for example, in arguing that boycotts of venders selling Playboy violate First Amendment rights). This approach to sexuality has “tilted toward freedom to and against freedom from,” she argues.

Regardless of whether you agree with Wheeler on that point — or whether you think it’s a good or bad thing — there is no denying her assessment that the civil liberties perspective now frames the most contentious debates surrounding sex in this country, from birth control to same-sex marriage. I spoke with her by phone about why she believes we need a new way to talk about these issues.

You write that the female founding members of the ACLU had a more difficult time than their male counterparts adjusting to the “rapidly changing sexual landscape” of the time. Why was that — and how did that shifting sexual environment influence the group’s early work?

Well, the ACLU was founded in 1920 and before then men had actually long enjoyed quite extensive sexual freedom outside marriage — and inside marriage. It was considered pretty OK for a middle-class man to visit a prostitute. It was considered fine for a middle-class man to have sexual relationships with working-class women, whether married or not. In fact, the ACLU’s most well-known first founder, Roger Baldwin, had his first sexual relationship with the family’s Irish maid when he was only 13 or 14, and later he had experiences that he wrote about with a prostitute.

It was very unusual for middle-class women to have those sexual relationships. In fact, women’s sexual freedom before 1920 and after was limited by their ignorance about birth control, their lack of access to birth control, the unavailability of effective birth control and laws against birth control devices and information about birth control. For women to be involved in a sexual relationship that involved heterosexual intercourse, birth control was a pretty important factor. Furthermore, expectations were that middle-class women would limit their sexual encounters to marriage. So when women like Mary Ware Dennett, Madeleine Doty, Dorothy Kenyon, Hazel Rice — all women who were involved in the early ACLU — when they found themselves married to men who wanted to continue to have a free sex life involving sexual relationships with women outside their marriage, these women didn’t feel comfortable with it. They didn’t have access to tools that would have made it possible for them to engage in those relationships themselves and they came from a culture that didn’t condone those relationships.

What I end up arguing is that one reason the ACLU got involved in defending advocates of birth control, like Margaret Sanger, is because it was something that men and women in the ACLU both agreed on. They disagreed on a lot of things relating to sexuality, but birth control was something that benefited both. It gave men the freedom to escape the sexual fidelity that many of their partners were demanding and it gave women the opportunity to experiment with sexual freedom.

Somewhat related, how did feminism influence the larger civil sexual liberty movement? What conflicts did it introduce?

I tend to use the term “feminism” in what I consider to be a very historical way. The women in the early ACLU would not have called themselves feminists. Not until the late ’60s did women who would identify as feminists join the ACLU, and when that happened, their interest in issues likes abortion and sterilization and rape and pornography and sexual harassment, all of those issues introduced lots of conflicts into the organization. Feminists were making demands of civil libertarians that civil libertarians were very uncomfortable with.

For example, feminists who joined the ACLU in the 1970s argued that rape law as written and implemented benefited defendants and worked against plaintiffs; they went to rewrite the laws so that the laws would benefit the plaintiffs and not the defendants. Well, the ACLU had a long history of advocating for criminal defendants, especially in rape cases. Most of the rape cases that came before the ACLU did so because they involved issues of race, and the ACLU had a long history of defending black men who were accused of raping white women.

So when feminists brought this issue into the ACLU, they met a lot of resistance, a lot of claims that feminists were trying to get the ACLU to abandon its “innocent until proven guilty” policy and were trying to make it easier to prosecute and convict men accused of rape, rather than defend their right to a fair trial. Meanwhile, feminists argued it wasn’t a fair trial if women who bring rape charges are in fact themselves tried for their own sexual behavior.

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And where does that fundamental conflict stand today?

Good question. A lot of rape law reform met success in the 1970s and ’80s. Rape laws all over the country were reformed; for example, many states prohibit defense attorneys from bringing in the plaintiff’s sexual history unless they can demonstrate that it’s relevant to the case. But if you look at the scholarship where people evaluate how effective rape law has been, they show that defense attorneys find ways to bring that information in anyway and manage to persuade judges that it’s relevant. So I’m not sure we’ve seen that much change. Rape kits are sitting on shelves, thousands and thousands of them across the country that are not even processed, so in 2012 we’re at a stage where we’re not even getting into court because the evidence isn’t getting examined.

You write that “support for sexual and reproductive freedom came relatively easily” but that “protection for victims of unwanted sexual expression and behavior did not.” Why was that?

Partly, I think, sexual and reproductive freedom, those are things that have long been restricted by the government. State laws and federal laws have made it criminal for people to get abortions, for example, or to engage in specific types of sexual relationships, sodomy, for example. I think issues that involve government restrictions on sexual behavior are easily considered civil liberties issues. When people claim, you know, we should be free from unwanted sexual expression and behavior, unwanted sexual expression and behavior most often is imposed by individuals and private and commercial entities, not by the government — so people are usually asking the government to provide that freedom, and that’s really tough for civil libertarians to deal with because it doesn’t fall within a typical civil liberties understanding of freedom.

How did the idea come about that the First Amendment offered protection not only to “producers of speech” but to consumers as well? We take that idea for granted now, but it wasn’t always that way.

Absolutely. The idea that consumers have a right to listen, to read, to hear is pretty recent — it’s only in the last 40 to 60 years. It’s not a right that was written into the First Amendment, which is clearly written as the right to freedom of speech, freedom to speak in other words. So it was really the ACLU that orchestrated a real expansion of the First Amendment by stretching it to include not just producers of speech but consumers of speech. One of the reasons the ACLU was quick to think of the First Amendment in this way was they had a really hard time getting producers of speech to defend their right to speak. Publishers of books and magazines and authors were very reluctant to defend their right to produce particular books or movies or newspapers. They usually found it much more profitable to just lie low when they were confronting censorship, whereas the ACLU was looking for people whose cases they could defend.

When the ACLU stretched the understanding of the First Amendment to include consumers, suddenly they had lots and lots of people saying, “I should have a right to read this book or see this movie.” They had an infinite constituency. It wasn’t just authors and movie producers; now it was absolutely every single person in the country that thought the First Amendment applied to them, because everyone is a consumer of speech in some way.

How did the civil liberties position on homosexuality evolve over time?

Originally, the ACLU claimed for decades that homosexuality involved no civil liberties at all. They said, “We’ll defend homosexuals whose rights are abridged and we won’t not defend them just because they’re homosexuals, but the fact of being homosexual doesn’t raise any particular civil liberties issues.” But beginning in the 1940s, the ACLU started to receive lots of letters from people who were receiving persecution in the military during World War II and were being dishonorably discharged because they were suspected of homosexuality, people whose mail was being surveilled by postal officials, and also people who were employed by the federal government, or tried to be employed by the federal government, and were turned away simply because of their homosexuality. Over time, individuals in the ACLU started to take the issue seriously. One of the really interesting issues that came up is that federal employment was denied to homosexuals because the government argued that being homosexual left a federal employee open to blackmail or created counterintelligence threats, which is exactly what we’re hearing today about General Petraeus.

It’s funny to read about how nudity was one of the first causes the ACLU championed, because the issue is hardly settled. Here in San Francisco we have a controversial proposal to ban nudity citywide. How many of these core battles are still being fought today?

Wow, like, all of them? Birth control is still embattled — the question of who’s paying for it and what restrictions are permitted and can you get it over the counter. And whether rape can result in pregnancy, apparently that’s still being debated! How we define pornography and whether prostitution is a victimless crime, issues of sexual harassment and when should restrictions on it be allowed to overweigh freedom of speech or expressions. All of these things remain highly contested. I keep wondering what role civil liberties is going to continue to play in how we think and talk about, and legislate and litigate, these issues. For now, I think civil liberties is a pretty important framing device for how we think about these things, but it’s not resolving the dilemmas.

Tracy Clark-Flory
Tracy Clark-Flory is a staff writer at Salon. Follow @tracyclarkflory on Twitter and Facebook.

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