CLYDE E.

WILLIS

THE PHENOMENOLOGY OF PORNOGRAPHY

A Comment on Catharine MacKinnon’s Only Words

ABSTRACT. Most people are familiar with Justice Stewart’s now classic state-
ment that while he cannot describe pornography, he certainly knows it when he
sees it. We instantly identify with Justice Stewart. Pornography is not difficult to
recognize, but it does elude description. This is because traditional attempts at
description are attempts that seek to explain at either an abstract or empirical level
rather than at the level that accounts for experience in its totality. Justice Stewart’s
lament represents the need to understand the subjective experience of pornography
and cease trying to explain it in purely objective terms. Much feminist literature
in general and Catharine MacKinnon’s work in particular seeks to do just this.
MacKinnon argues that pornography should not be explained in familiar First
Amendment freedom-of-expression terms, but rather in terms of the actual sexual
abuse it constitutes in experience. Then, and only then, are we able to select the
appropriate legal remedy. This essay suggests that MacKinnon’s position not only
needs the support of a non-traditional philosophical approach, but has one readily
available in the phenomenology of philosopher Edmund Husserl.

INTRODUCTION

Catharine A. MacKinnon, noted feminist and legal scholar, is

Professor of Law at the University of Michigan. Her most recent
book, Only Words,1 published in 1993 has received much critical
attention for its argument regarding the role of pornography in con-
temporary society. For some time MacKinnon’s has been leading a
frontal assault on various forms of discrimination toward women in a
male-dominated society. In Sexual Harassment of Working Women,
she surveyed the plight of women subjected to sexual harassment in
the workplace; in Feminism Unmodified, she continued this theme
with a series of articles on various feminist issues including rape,
abortion, athletics, and pornography; and in Toward a Feminist The-
1
MacKinnon, Katharine A., Only Words (Cambridge: Harvard University
Press, 1993).

Law and Philosophy 16: 177–199, 1997.

c 1997 Kluwer Academic Publishers. Printed in the Netherlands.
178 CLYDE E. WILLIS

ory of The State she presented an overall theory of gender politics

centered in a male-dominated hierarchy.
The thesis of Only Words is that so long as the dominant legal
position treats pornography as only words subsumed under the First
Amendment’s freedom of expression, the law of obscenity that seeks
to proscribe the worst of pornography is itself only words for all the
good it can accomplish. MacKinnon claims that the essence or expe-
rience of pornography is not what it says but rather what it does.
Pornography is discrimination that should be subsumed under the
anti-discrimination provisions of the Fourteenth Amendment. It is,
in short, a perpetuation of sexual inequality. According to MacKin-
non, where the constitutional values of freedom of expression and
human equality have intersected, expression has been allowed to
trump equality. At least insofar as pornography is concerned, First
Amendment law protecting expression has grown as if there is no
equal rights component in the Constitution. MacKinnon seeks to
establish a legal position that will “vindicate a constitutional interest
in equality which is as important as, or part of, the speech interest
used to demolish them.”2 But so long as pornography is seen only
in terms of freedom of expression, acts of pornography win hands
down.
Thus it is the goal of Only Words to portray pornography in an
altogether different light, as an act rather than as expressions of
speech or ideas. The focus shifts from First Amendment censorship
to Fourteenth Amendment empowerment. “The operative definition
of censorship accordingly shifts from government silencing what
powerless people [pornographer] say, to powerful people [pornog-
rapher] violating powerless people [women] into silence and hiding
behind state power to do it.”3 Just as law is seen as partly responsible
for subjugating women, law must bear part of the burden of creating
gender equality. In short, she sees the community fulfilling a duty to
act positively rather than simply exercising the negative veto of the
proverbial night watchman.
To say that the attack on all forms of pornography by feminists in
general and Catharine MacKinnon in particular is causing a furor is
probably a gross understatement. The belief that this attack under-

2
Only Words, p. 87.
3
Only Words, p. 10.
 THE PHENOMENOLOGY OF PORNOGRAPHY 179

mines the foundation of freedom of speech, press and expression in

this country fuels part of the furor. But while freedom of expres-
sion remains steadfast, arguments against pornography refuse to go
away. Perhaps the time has come to look at MacKinnon’s argument
in Only Words from a fresh perspective, to allow her the opportunity
to – at least temporarily – remove the spectre of the loss of First
Amendment freedoms and see pornography for what it might oth-
erwise be. This effort requires transcending standard legal analysis.
Looking at pornography in a different light, from a different intel-
lectual paradigm, not simply taking pornographic expression from
one section of the Constitution to another, but actually seeing it for
what is before constitutional principles are even considered.
As one of the leader in the contemporary anti-pornography move-
ment, MacKinnon has not only been characterized from within the
feminist movement as proposing a new method of legal analysis,4
calling for legal reform,5 and reframing the legal debate surround-
ing pornography,6 but complementing North Carolina Senator Jesse
Helms inside the “New Right,”7 and constituting a leftist critique of
the status quo.8 Framing the debate even more stridently, MacKin-
non has portrayed her opponents in the feminist movement as “house
niggers who sided with the masters,” while they have labeled her
as a new puritan siding with fascists.9 Nonetheless, MacKinnon’s
work which seeks to empower women by creating a civil cause of
action for damages and injunctive relief against the producers and
distributors of pornography deserves serious consideration.
MacKinnon claims that pornography is an institution of sexual
abuse that perpetuates while teaching male dominance. In short,
4
Matthews, Elizabeth. “Only Words:” a book review. Harvard Civil Rights-
Civil Liberties Law Review 29 (Summer 1994): 599.
5
Grant, Elaine. “Only Words:” a book annotation. New York University Review
of Law and Social Change 20 (1994): 688.
6
Booknote. Harvard Law Review 107 (1994): 2111.
7
Taub, Nadine. “A New View of Pornography, Speech and Equality or Only
Words.” Rutgers Law Review 46 (1993): 595.
8
Baker, C. Edwin. “Of Course, More than Words.” University of Chicago Law
Review 61 (1994): 1181, and quote by the 58-year-old German-born artist, Hans
Haacke, New York Times (National Edition) December 9, 1994, p. B10.
9
Washington Post, November 27, 1993, p. A27; Art Levin and Kathleen
Currie, “Whip Me, Beat Me and While You’re at it, Cancel my N.O.W. Member-
ship,” Washington Monthly, June 1987, pp. 17, 20, both quoted in Packard and
Schraibman.
180 CLYDE E. WILLIS

she claims that pornography is one way that male dominance is

experienced by men and women. Moreover, she intends to do some-
thing about it in a very non-traditional way. Declaring that current
American obscenity law is “only words” for all the good it does
to curtail the effects of pornography, and that treating pornography
itself as “only words” is unjustified, she proposes to give women
a right of action against the purveyors of pornography. MacKinnon
believes that women, armed with the right to attack pornography by
focusing on the harm it does, will be able to stem pornography’s
ever-increasing, wide-spread effects. This right permits people the
opportunity to prove that they were injured by pornography and
recover for the deprivation of their civil rights and stop it from
continuing.
MacKinnon can be engaged from two principal directions. While
one denounces her proposal because it impinges upon the freedom of
speech, the other complains that no empirical evidence demonstrates
that pornography is harmful in the first place. According to the first
view, pornography belongs within the legal category of expression
– end of discussion. According to the second, it has no real world
effect – end of discussion again. The purpose of this essay is not to
add another chapter to this debate, but rather to examine the extent to
which MacKinnon, particularly in Only Words, abandons traditional
analytical methods for one influenced by the phenomenology of
German philosopher Edmund Husserl.10
Husserlian phenomenology seeks to transcend the duality inherent
in the subject-object dichotomy that would argue that public policy
should be grounded only in external reality or that which exists in
the objective world. This subject-object dichotomy is based on the
notion that what is real in the objective world for anyone – whether
in the form of empirical fact or abstract idea – is real (thus true)
for anyone and everyone. A corollary of this split argues that what
10
The work of Husserl (1859–1938), the German mathematician and principle
founder of phenomenology, that contain the concepts employed in this essay and
from which this essay is drawn is Ideas: General Introduction to Pure Phenom-
enology, (1913) W.R. Boyce Gibson, trans. (NY: Macmillan, 1931; Collier 1962).
Three excellent secondary sources that are used in this work are: Don Ihde, Exper-
imental Phenomenology (Albany: State University Of New York Press, 1986);
Erazim Kohák, Idea and Experience (Chicago: The University of Chicago Press,
1978); and Maurice Natanson, Edmund Husserl (Evanston: Northwestern Univer-
sity Press, 1973).
 THE PHENOMENOLOGY OF PORNOGRAPHY 181

exists in the subjective world is only real for that particular subject.
In short, what is objectively real for one is real for everyone, what is
subjectively real for one is unique to that one. Moreover, it follows
that in order to actually see objective reality, people must overcome
or set aside their subjective position. Thus, public policy cannot be
based upon something not interpersonally valid.
Rationalists argue that pornography fits within the objective cate-
gory of expression and empiricists argue that no objective, empirical
proof exists of pornography’s effect. Consequently, public policy
should not proscribe pornography on either ground. This duality
manifests itself in various interpretative strategies: original inten-
tion, plain meaning, strict-construction, neutral principles, process
over substance, and the like. What most of these share is the desire to
arrive at legal decision-making with a foregone, pre-ordained deci-
sion insofar as subjectivity is concerned. Most reflect a desire to
present results as the right decision, the decision that everyone has
to agree with because it is demonstrably correct, either empirically
or logically. In all cases, subjectivity must be precluded.
In the case of pornography, rationalists confidently assert that
pornography can be viewed as another form of speech entitled to
full First Amendment protection, and empiricists argue with equal
confidence that there can be no legal remedy for the effects of pornog-
raphy so long as objective evidence of harmful effect does not exist.
MacKinnon’s argument, on the other hand, raises the analysis to a
higher level, rejecting both the formal category of expression and the
need for empirical proof of harm. Her approach attempts to account
for the totality of human experience, experience that includes sub-
jectivity.

A PHENOMENOLOGICAL PERSPECTIVE: LIVED-EXPERIENCE

A phenomenological description describes experience in its totality,

taking neither “sense-data (the explanatory postulates of empiricism)
nor forms of judgment (the explanatory deductions of rationalism)”
as the fundamental basis of derived meaning.11 Instead, it considers
empirical facts and abstract concepts as objects only in the sense
11
Edie, James M., Edmund Husserl’s Phenomenology: A Critical Commentary
(Bloomington: Indiana University Press, 1987), p. 13.
182 CLYDE E. WILLIS

that they are objects of consciousness. The practical effect of a

phenomenological approach is that it takes a public policy question,
say the legal treatment accorded pornography, to a higher level.
At this level, issues are resolved subjectively according to what
kind of society the community is willing to fashion rather than
the type of objective community that appears to be pre-ordained
by some method of interpretation. Pornography is seen more in
terms of how it is subjectively experienced – given the kind of
society deemed desirable, than by the extent to which it fits in some
objective categorical analysis. Whereas rationalists argue that the
meaning of pornography is determined on the basis of whether it fits
within the traditional concept of speech and empiricists argue that
the meaning of pornography must be based on its manifest effects,
phenomenologists argue that the meaning of pornography depends
on how it is subjectively experienced.
The term “phenomenology” may throw many readers off guard.
It may appear that something strange and suspect – and very Con-
tinental – is being offered. This may not be so. What is significant
about phenomenology is not so much that it offers a new way of
legal analysis as that it offers a descriptive framework for some of
the best legal analysis that has been conducted in American jurispru-
dence. Holmes, Cardozo, and Llewellyn represent this brand of legal
analysis. The traditional approach to the legal treatment of pornog-
raphy, however, devolves into a vicious fact-principle circle. Justice
Owen Roberts in U.S. v. Butler, 297 U.S. 1 (1936), provides a clas-
sic description of this process when he in effect states that legal
reasoning involves only the simple task of laying the legal princi-
ple alongside the facts and simply determining if there is a fit. This
mechanical jurisprudence relegates the entire process to out there,
disdaining and striving to avoid anything in here.
Take, as an example, legal analysis of a snuff film that contains
a sex murder. The initial inquiry involves determining what the
facts mean. The movie will usually be instantly and automatically
classified as a form of expression.12 Facts in a snuff film, however,
do not come fully clothed with meaning as such. They are intelligible

12
Even if it is considered to be obscene, legally speaking, and subject to
proscription, it is nevertheless still considered a form of expression, just a form
that is beyond the pale of First Amendment protection.
 THE PHENOMENOLOGY OF PORNOGRAPHY 183

only because they are seen as a contingent example of an abstract

construct or principle. In pornography, the principle of expression
comes to mind almost automatically. But, did the category create the
meaning of the facts or did the facts beg for the creation of a category
of expression absent any predilection to consider it expression? We
create a vicious circle that comes from habitually seeing facts through
the lens of the principle or selecting the principle on the basis of the
facts. Thus, is the meaning of the facts deduced from the principle
or is the principle generalized from the facts?
Even a work as classic as Edward Levi’s An Introduction to Legal
Reasoning,13 still required reading in many law school curricula, can
leave the impression that sound legal reasoning simply vacillates
between fact and principle. Levi describes the process, which he
calls “reasoning by example,” as a three-step process. Prior to the
process, the proposition of a decided case becomes a legal principle.
The process involves looking for a prior case factually similar to
the present one, announcing the rule of the previous case, and then
applying the rule to the current case.
The impression of mechanical jurisprudence is overly facile and
deceptive. Although Levi does not seek to account for the origin of
the principle in the first case, he is nevertheless quick to recognize
that legal reasoning is not as simple as Justice Roberts would have
us believe. In direct response to Justice Robert’s anti-subjectivist
claim that the “court neither approves not condemns,” Levi states
“while the court neither approves nor condemns, in its exercise of
judgment it does have to determine whether there is any connection
between what has been done and one of the great ideals embodied
in the Constitution.”14 He goes on to say that “the problem of seeing
connection is not so dissimilar from passing upon the wisdom of
legislation as some [like Roberts] have thought.” Moreover, “there
is an affirmative recognition in a constitutional case that the problem
is the connection between what is sought to be done and the ideals
of the community. Connection and consequence must be argued.”15
Levi also recognizes that legal categories are simply tools that
manipulate facts. He says, “all in all the categories were a way of
13
Levi, Edward H., An Introduction to Legal Reasoning (The University of
Chicago Press, 1949).
14
Levi, p. 58.
15
Levi, p. 60.
184 CLYDE E. WILLIS

comparing cases from different points of view.”16 Legal categories

and principles are not un-mediated phenomena. Assuming that they
are the raw data of decision-making maintains a non-ending, non-
productive circle between fact and principle.
Phenomenology seeks to break out of the fact-principle cycle by
recognizing and making explicit what is implicit in Levi’s critique
of Justice Roberts; that both fact and principle exist but are mediated
by and through lived experience. Just as discrete, empirical facts are
meaningful only by virtue of their association with principles, the
principles themselves are meaningful only by virtue of the primordial
lived-experiences of which they are part. In short, lived experience
makes both principles and facts intelligible, not vice versa. It is
the essence of the lived-experience, the total action, including sub-
jectivity, that a person experiences when engaged – vicariously or
otherwise – by pornography that determines its meaning.
This is the thrust of Justice Stewart’s lament that “I shall not today
attempt to define the kinds of material I understand to be embraced
within that short hand description [hard-core pornography]; and
perhaps I could never succeed in intelligibly doing so. But I know it
when I see it.”17 (Emphasis added) In other words, a factual descrip-
tion or statement of principle that lists pornography’s empirical
attributes will always insufficiently explain it. It can be completely
understood only by articulating the essence of a subject’s direct
experience of pornography.
MacKinnon seeks to evoke this totality of lived-experience when
she begins her work by placing readers in the midst of a lived-
experience. She writes:

You grow up with your father holding you down and covering your mouth so
another man can make a horrible searing pain between your legs. : : : [After] a
thousand years of silence, the camera is invented and pictures are made of you
while these things are being done : : : the pictures are out there somewhere, sold or
traded or shown around or just kept in a drawer. : : : Those who use you through
the pictures feel their own pleasure. They do not feel your pain any more than
those who watched you to make the pictures felt : : : they have made sex be what
it is to the people who use you and the pictures of you interchangeably. : : : You
find other women. : : : The same acts that were forced on you are forced on them.
: : : When any one of them tries to tell what happened, she is told that it did not

16
Levi, p. 73.
17
Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
 THE PHENOMENOLOGY OF PORNOGRAPHY 185

happen, she imagined it, she wanted it. : : : The pictures themselves do nothing.
They are an expression of ideas, a discussion, a debate, a discourse.18

The passage does not simply catalogue pornographic facts or recite

abstract generalizations about it. Rather, it seeks to evoke the expe-
rience of living pornography: “Imagine : : : your most formative
traumas, your daily suffering and pain, the abuse you live through,
the terror you live with : : : your father, your husband, your doctor,
you hear, you know, feel.” In this way MacKinnon seeks to evoke
the total reality of what pornography is in the experiential world.
She is not seeking to explain pornography as by an observer, but to
describe it as experienced.19

OVERCOMING THE NATURAL STANDPOINT

To reach the subjective component of the analysis, we must

trace Husserl’s phenomenological progression. First we realize that
discrete, contingent facts are meaningful only when seen as an
instance of some overarching idea or principle.20 Facts do not come
replete with their own interpretative framework. Thus, until you
place them within some hermeneutical structure of understanding,
they are meaningless. Husserlian phenomenology holds that ideas
that transcend facts and give them meaning are themselves medi-
ated by something even more fundamental.21 Principles are made
intelligible by and as part of a person’s conscious lived-experience.
Lived-experience gives ideas meaning, not the other way around.
This realization advances the analysis to the subjective level, a level
in which neither facts nor ideas explain phenomena, but rather coor-
dinate what is essentially a subjective enterprise.
Husserl notes that the world “is not there for me as a mere world
of facts and affairs, but, with the same immediacy, as a world of
values, a world of goods, a practical world.”22 When we are con-
18
Only Words, pp. 3–6.
19
In a phenomenological sense, a man can relate to the experience of the woman
by disregarding the particular facts described by MacKinnon and focusing instead
on the shared human, interpersonal reality of experiencing the very abominable,

x
particularly those of domination and humiliation.
20

x
Ideas, 2.
21
Ideas, 3.
22
Ideas, p. 27.
186 CLYDE E. WILLIS

fronted by, say for example, a snuff film, we experience more than
a set of facts or a concept of obscene-ness. We are participates in
a lived-experience, lived-experience full of all the complexity and
richness that is always present. Oftentimes as scholars we become
so comfortable isolating certain features of experience that we forget
its totality. We divide the world into an assumed objective out there
and a subjective in here. This mistaken assumption, which Husserl
calls the general thesis of the natural standpoint, results in the notion
that what is out there explains what is in here.23 Thus, according to
the natural standpoint, we would mistakenly derive pornography’s
meaning from the objective content of pornography or the rational
category that usually explains it.
Phenomenology seeks to get beyond the natural standpoint that
omits the subjective and thus cannot account for total reality. We
initially overcome the natural standpoint when we realize that facts
constitute nothing in and of themselves, but rather contingent exam-
ples of everything that shares a similar principle, or what Husserl
calls eidos.24 For example, the snuff film facts do not constitute
a sui generis category but conform to a type of phenomenon that
has an eidos or principle generally characterized as pornography.
That abstract categories mediate facts is hardly new. And most legal
analysis quickly arrives at this point à la mechanical jurisprudence.
What is perhaps less well known is the appreciation for the process
by which the category itself is selected.
For example, the entire process of initially selecting pornography
as a category and then as pornographic expression and then treating it
as a category of activity protected by still yet another category – free-
dom of expression – is mediated by subjectivity. Husserl’s argument
forces us to recognize that, the natural standpoint notwithstanding,
facts not only lack immediacy, but are doubly mediated. Contingent
facts are mediated by transcendental principles that are themselves
mediated by the conscious intentionality of perceiving subjects.25
More simply, the process illustrates the way we consciously relate
to the objective world in a lived experience. It is this area of experi-

23

xx
Kohák, p. 34.
24

x
Ideas, 31–32.
25
Ideas, 2.
 THE PHENOMENOLOGY OF PORNOGRAPHY 187

ence that the phenomenological investigation explores, the area from

whence comes meaning.

THE PHENOMENOLOGICAL EPOCHÉ

Another label for this area of phenomenological investiga-

tion is “consciousness as the region of absolute transcendental
subjectivity.”26 This refers to lived-experience as directly experi-
enced, considered as any subject’s experience as it occurs in prin-
ciple rather than in some particular, concrete manner. The area is
subjective because the world is intelligible only as a subject’s expe-
rience, not as out there. It is transcendental because the structure of a
subject’s experience is defined by principle that transcends particular
objects. And it is absolute because all but the subject’s experience
is excluded as an explanation and guide to understanding the expe-
rience. Whereas a rationalist and an empiricist may see subjectivity
mediated by abstract categories or by objective experience, the phe-
nomenologist sees subjectivity as something directly experienced in
which rational categories and empirical facts serve more as coordi-
nates of subjectivity than as independent factors of meaning.27 It is,
in short, phenomenon that presents itself without mediation to the
subject person.
To see experience in absolute, subjective terms, we must illumi-
nate the transcendental aspect of the natural standpoint. We must
discard the subject-object division of reality to escape the circu-
lar fact-principle argument in order to examine experience as thus
freshly constituted. In Husserlian terminology, one must perform the
phenomenological epoché. In the epoché, the external world – ideas
and facts alike – is bracketed or disallowed as an explanation for
phenomena.28 In other words, the analysis gets beyond the natural
standpoint. The external world is not ignored or presumed to be
non-existent, it is merely prevented from automatically constituting
the basis for understanding a phenomenon.
26
Kohák, p. 73.
27
Ihde, pp. 41ff.
28
How many epochés are performed depends on how far one is carried by the
notion. Natanson relates that one commentator, Quentin Lauer, claims to have
found six levels of reductions (epochés) in Husserl’s writings (p. 65).
188 CLYDE E. WILLIS

For example, neither the bare facts represented by a snuff film nor
the principle of obscene-ness is allowed to explain the phenomenon.
While the facts are meaningless without the concept, the concept is
but a catalogue of the facts that are subjectively deemed meaningful.
What calls up the concept can only come from the immanent structure
of a subject’s intentional act that relates to and experiences both con-
tingent empirical and contingent principles. Ultimately the immanent
principles or the essential structures of consciousness are involved.29
The category pornography simply begs the ultimate question: not so
much how pornography is described as how it is experienced.
We need to distinguish between transcendent and immanent
principles. The former are ultimately bracketed “out” in the phe-
nomenological epoché, the latter remain; the former are contingent,
the latter are necessary.30 For instance, to say that a snuff film is
proscribed because it is obscene tells us nothing really. To classify
something as obscene purports to simply describe what pornography
is rather than to describe the way one experiences or lives pornog-
raphy. For example, describing pornography by means of the Miller
test places it in the objective world out there.31 However, portraying
it as MacKinnon does – “an erection is neither a thought nor a feel-
ing, but a behavior” – clearly focuses on experiencing pornography,
not theorizing about what it is or even what its effects might be.32 As
one commentator has put it, the phenomenological description seeks
“to make our observation of experience consistent with the way we
actually live it.”33 MacKinnon put it this way: “this definition [of
pornography] describes what is there, that is, what must be there for
the materials to work as sex.”34
The focus of attention during the epoché is the Wesen or essential
structure of a phenomenon understood as part of lived experience.
The examination concentrates not on a recitation of the facts found in
29
xx
x
Ideas, 47–55.
30
Ideas, 59.
31
Under the Miller test, derived from the case of Miller v. California, 413
U.S. 15, 25 (1973), a community may regulate patently offensive representations
or descriptions of ultimate sexual acts, normal or perverted, actual or simulated
and patently offensive representations or descriptions of masturbation, excretory
functions, and lewd exhibition of the genitals.
32
Only Words, p. 16.
33
Kohák, p. 45.
34
Only Words, p. 22.
 THE PHENOMENOLOGY OF PORNOGRAPHY 189

works considered pornographic, nor on whether the standard expla-

nation fits these or similar facts, but on what is happening to an
individual during the experience. For example, if the question
involves whether something is pornographic, we could offer a list of
empirical facts that have been previously determined to be porno-
graphic as evidence, much like following the steps of Levi’s reason-
ing by analogy. Or we could offer the categorical legal definition of
pornography as a logical proposition from which appropriate deduc-
tions could be made. The ultimate question remains: how can the
experience be adequately described. A phenomenological examina-
tion, or description, if you will, endeavors to discern the essential
structure of a pornographic experience. Offering empirical proof of
similarity does no more than remove the question to an earlier factual
instance. To offer a definition as controlling does nothing more than
preclude the real examination of subjective experience.
For instance, on one level, subjecting pornography to the Miller
test amounts to an application of Justice Roberts’ mechanical
jurisprudence: simply lay the facts along side the rule and deter-
mine if it fits. In a Miller-type proceeding, the facts are considered
to be a form of expression because, à la the natural standpoint, they
fit an already existing explanatory category. The only remaining task
is to determine the fit. Yet a Miller proceeding falls into the vicious
circle: do the facts fit the principle or does the principle fit the facts;
same thing both ways. The inquiry should instead focus on what a
pornographic experience is.
MacKinnon bases her entire argument on the willingness to reject
the thesis of the natural standpoint. She quickly describes both the
natural standpoint and the need to place it in brackets:
pornography falls presumptively into the legal category ‘speech’ at the outset
through being rendered in terms of ‘content,’ ‘message,’ ‘emotion,’ what it ‘says,’
its ‘viewpoint’ its ‘ideas.’ Once the women abused in it and through it are elided in
this way, its artifact status as pictures and words gets it legal protection through a
seemingly indelible categorical formalism that then must be negated for anything
to be done.35

35
Only Words, pp. 10–11.
190 CLYDE E. WILLIS

THE HERMENEUTICS OF THE EPOCHÉ

After we have illuminated the natural standpoint and understood the

necessity of an epoché, we may engage any of several hermeneu-
tical strategies that enable a phenomenon to be perceived in its
lived immediacy. As described in a small work by philosopher,
Don Ihde, these strategies are focus on phenomena as they appear
unmediated in experience; describe, do not explain; horizontalize all
phenomena initially; and seek out structural or invariant features of
the phenomena.36 Although each strategy is so much a corollary of
the others that they eventually merge, considering each in turn yields
positive results.
The first one, focusing on phenomena as they appear unmediated
in experience, involves a deliberate attempt to reject the thesis of the
natural standpoint. It quickly devolves into the second rule: describ-
ing instead of explaining, aided by discarding the typical explana-
tion provided by the world out there. To describe rather than explain
requires focusing more on what is actually there to be seen, not on
what justifies its existence – whatever it is. In other words, as Ihde
points out, to “explain” something is to go behind it by accounting
for it in terms other than what it is in a lived experience. MacKinnon
describes instead of going behind to explain when she relates a situa-
tion where a man sends a note to a woman ending with the statement
“I’m going to fuck you even if I have to rape you.” Not only is
the man “getting off” by writing the note, the woman feels sexually
violated as well as terrified of the prospect of rape. It is the difference
between justifying a particular film in terms of its fit with the defin-
ition of allowable expression under Miller and describing what it is
in terms of how it was experienced by participants, including actors
and audience alike. If we experienced the exchange of ideas, that
is one thing. If we encountered a sadomasochistic experience, it is
something altogether different, and the community response should
be quite different as well.
The third hermeneutical strategy involves the notion that we
should look before we judge. Of course, the difficulty is making
certain that we have not already pre-judged. Nevertheless, we must
appreciate the ability to pre-judge. While it is true that prejudice can
36
Ihde, chpt. 2.
 THE PHENOMENOLOGY OF PORNOGRAPHY 191

blind us to other points of view, we need it to construct the cogni-

tive base upon which understanding occurs in the first place.37 The
requirement of looking before judging does not mean, as objectivist
approaches claim, that we can remove all prejudice. However, it
does mean that we should strive to set aside or “bracket” our preju-
dices and look again, afresh, willingly placing these prejudices at
risk. This attitude is captured when MacKinnon claims that women,
as the subject of pornography, must be the focus of inquiry into the
meaning of pornography. She states “instead of [seeing] the forces of
darkness seeking to suppress what the forces of light are struggling
to free, her captivity itself is made central and put in issue for the
first time.”38
For example, as mentioned before, the instant someone mentions
a snuff film, we immediately think pornography, followed almost
automatically by the notion of expression and the First Amendment’s
protection of freedom of expression. Thus, we understand the film
in terms of a pre-existing interpretative framework. Yet, if we are to
engage many in the community in meaningful dialogue, we must put
our prejudices at risk. As Karl Llewellyn put it, “the quest consists
in a constant reexamination and reworking of a heritage, that the
heritage may yield not only solidity but comfort for the new day and
for the morrow.”39
The fourth hermeneutical strategy is variously called, among
other things, “possibilization phenomena,” “ideation,” and “free
variation.” We engage in free variation to find, to see, to grasp
the essential, non-variant aspects of experience. Essentially, “we
are asking what is invariant in the object or event (as imagined),
what the minimal conditions are for something to be presented
or represented.”40 This involves a “free play” of the imagination
because the essence of an object can only be found as it appears
in principle not as peculiar to the concrete situation. To imagine in
this sense does not mean to engage in whimsical fancy but rather

37
Gadamer, Hans-Georg, Truth and Method (1960), Second Revised Edition,
Joel Weinsheimer and Donald G. Marshall, trans. (NY: Crossroads Publishing Co.,
1989), p. 270.
38
Only Words, p. 9.
39
Llewellyn, Karl N. The Common Law Tradition: Deciding Cases on Appeal
(Boston: Little, Brown and Co., 1960), p. 36.
40
Natanson, p. 67.
192 CLYDE E. WILLIS

to simply conjecture. Kohák explains it by describing how at first

children may have difficulty in perceiving the application of 1 + 1 =
2 beyond the two apples that may be before them, but they soon can
imagine many concrete situations where 1 + 1 = 2 can be applied.41
The goal of the epoché, then, is not so much to ignore any partic-
ular part of the world out there as it is to see all of it as part of a
totality. For example, once the facts of the film have been set aside
and the pornography principle has been illuminated, the conventional
explanation for the film as First Amendment expression is also set
aside. Not rejected as part of totality, simply held in abeyance until
other aspects can be illuminated. The imagination can then conjure
up different versions of experiencing the principle of pornography-
ness or obscene-ness to determine the invariant characteristics of the
experience as experienced in consciousness. Once the possibilities
have been considered, the essence, or Wesen, which includes the cate-
gory of expression will be determined anew. The film may no longer
automatically constitute a form of expression; it may be defamation,
discrimination, harassment, or sadomasochism, or something alto-
gether different. In short, one illuminates then suspends prejudice
in order to see what prejudice precluded in the first place before
drawing explanatory conclusions.
The way MacKinnon approaches the essence of pornograph-
ic activity illustrates free variation. Having rejected the natural
standpoint, MacKinnon allows us to see pornography as the various
“institutions and practices they constitute, rather than as expressions
of the ideas they embody or further.”42 She claims that the essence of
pornography is not what it says, for there are many ways to say what
pornography says. The essence, instead, is what it does as it expresses
the ideas embodied in pornography, for in this sense “nothing else
does what pornography does.” Pornography, unlike the mere expres-
sion of ideas, actually “forces, threatens, blackmails, pressures, and
cajoles women,” and should be proscribed by law,43 and like other

41
Kohák, p. 145.
42
Only Words, pp. 11–13.
43
MacKinnon gives examples: When women are gang raped for film, they are
gang raped. When “women are hurt and penetrated, tied and gaged, undressed and
genitally spread and sprayed with lacquer and water so sex pictures can be made,”
they are not mere expression of ideas or anything else. The are acted upon. (See
Only Words, p. 15.)
 THE PHENOMENOLOGY OF PORNOGRAPHY 193

forms of force, threats and blackmail, it should be proscribed by law.

Thus, for MacKinnon, in addition to its expressive form or content,
which she has subjected to the epoché, pornography is seen in Only
Words as sexual defamation (chpt. one), sexual harassment (chpt.
two), and sexual inequality (chpt. three). She asks us to set aside the
prejudice of the natural standpoint and place it “at risk” so that we
can join the dialogue about these views.
While on one level MacKinnon does employ the reason-by-
analogy method to define a view of pornography as an act rather
than an expression by comparing pornography with libel and slander
cases under the First Amendment as well as discrimination cases
under the Fourteenth, on another level, her argument calls forth a
phenomenological description, as she seeks to compare the experi-
ence of pornography which “hurts” with the experience of libel,
slander and discrimination which also “hurt.” Her claim that a
difference exits between expression that should be afforded First
Amendment protection and pornography rests on the fact that they
are “experienced” differently. And being different, they should be
treated differently.44

44
For that matter, a legal argument that pornography is commerce can be made
just as easily as one that it is either discrimination or expression of ideas. Take,
for instance, the cases involving governmental regulation of activity considered
immoral and inimical to the welfare of the nation. During the evolution of com-
merce clause categories beginning with the lottery case, Champion v. Ames, 188
U.S. 321 (1903), upholding a congressional ban on transporting lottery tickets
across state lines, and Hoke v. U.S., 227 U.S. 308 (1913), validating the Mann
Act of 1910, which made it a crime to transport women across state lines for
prostitution, the Court has recognized that Congress could prohibit activity in the
channels of commerce among the states on the grounds of immorality. See also
Weber v. Freed, 239 U.S. 325 which upheld a ban on importation of photos of
prize fights, and Seven Cases v. U.S., 239 U.S. 510 (1916), and Caminetti, 242
U.S. 470 (1918) which stated that “the authority of Congress to keep the channels
of interstate commerce free from immoral and injurious uses : : : is no longer open
to question.” Also relevant is Chief Justice Taft’s statement in Brooks v. U.S., 267
U.S. 432 (1925) regarding the National Motor Vehicle Theft Act: “Congress can
certainly regulate interstate commerce to the extent of forbidding and punishing
the use of such commerce as an agency to promote immorality, dishonesty or the
spread of any evil or harm to the people of other states from the state of origin.
In doing this, it is merely exercising the police power for the benefit of the public
within the field of interstate commerce.” While the Court is quick to scrutinize
any police power action in terms of due process and equal protection, its existence
as a regulatory tool under the commerce clause is not to be denied.
194 CLYDE E. WILLIS

THE PROBLEM OF INTERSUBJECTIVITY

In a nation that claims to be governed by laws rather than by people,

a discussion of any method of legal analysis that even hints at sub-
jectivity must also speak to the problem of subjectivity.45 After all,
the word “subjectivity” itself conjures up hobgoblins in every corner
of the theoretical landscape. As one commentator put it, people get
the idea that a move to any form of subjectivism is like entering a
conceptual monastery where “the novice is expected to contemplate
essences and chew his transcendental cud.”46
The phenomenologist makes two arguments relative to the charge
of the solipsistic notion that one’s mind cannot know anything other
than the contents of one’s own mind. One argument is negative, and
one positive. The first points out the illusory nature of objectivity.
The second asserts that phenomenology is not just another form of
subjectivism because it is firmly rooted in and never leaves the realm
of empirical fact.
This is not the place to get into an extended discussion of the
merits and demerits of various approaches to objectivist legal reason-
ing. Suffice it to say that the debate itself is compelling evidence that
an interpersonal version of the meaning of anything cannot be found
in the objective world. For example, witness how the obscenity test
immediately collapses into a subjective analysis the very moment
it is applied. After all, one of the main criticisms of the Miller test
is that it is abstract, so much so that it can be interpreted to suit
everyone. Yet, the effort to objectivize the test is self-defeating. A
legal principle by definition will transcend the particulars of a dis-
crete, concrete fact situation. Consequently, it will represent other,
different imaginable factual situations. Because of its transcendental
character, principle cannot be limited solely by the particular ele-
ments unique to a factual situation. Thus, while the facts do have
limiting authority on the interpretation of legal principle, they cannot
solely determine meaning.
The elusive interplay of rules and facts within reasoning by
analogy is what makes the law so beautiful to Levi. That “rules
change from case to case and are remade with each case : : : is the
45
MacKinnon acknowledges as much when she states “your violation [is] his
arousal, your torture, his pleasure” (Only Words, p. 4).
46
Natanson, p. 42.
 THE PHENOMENOLOGY OF PORNOGRAPHY 195

indispensable dynamic quality of law.”47 This is not to say that Levi

claimed that meaning was arrived at by deduction, for he rejected
the process as either simple deduction or induction. While he indi-
cated that it had a circular quality – going between rules and facts,
he also indicated that a category will come into being and that
over time it will lose its suggestive powers of interpretation due
to changed circumstances or changed attitudes of the community.
Actually, Levi’s description of the process beautifully portrays the
subjective component in judicial decision-making:

The concept is suggested in arguing difference or similarity in a brief, but it

wins no approval from the court. The idea achieves standing in the society. It is
suggested again to a court. The court this time reinterprets the prior case and in
doing so adopts the rejected idea. In subsequent cases, the idea is given further
definition and is tied to other ideas which have been accepted by courts. It is now
no longer the idea which was commonly held in the society. It becomes modified
in subsequent cases. Ideas first rejected but which gradually have won acceptance
now push what has become a legal category out of the system or convert it into
something which may be its opposite. The process is one in which the ideas of
the community and of the social sciences, whether correct or not, as they win
acceptance in the community, control legal decisions”48

This subjective component has always existed; the crucial thing

is to confess it and make it manifest in describing the process. More-
over, Levi’s description is appropriate to MacKinnon’s effort.
In any event, the transcendental nature of legal principles leads
directly to the argument that phenomenology is not a form of
solipsism since – if the claim of phenomenology has merit – “the
foundations of intersubjective validity must, in the last instance, be
found in experience, not beyond it.”49 “Ordinary experience finds
the basis for the intersubjective validity of its statements – not in a
common world but in a common humanity.”50 Kohák clarifies this
with a simple illustration: while what we eat is not the same, the
experience of eating is. Eating is a shared human experience that
demonstrates interpersonal validity. In other words, what it means to
eat is not explained by the various things we eat, but by the common
attributes of human hunger and satiation.
47
Levi, p. 2.
48
Levi, pp. 5–6.
49
Kohák, p. 79.
50
Kohák, p. 80.
196 CLYDE E. WILLIS

Inasmuch as objective reality cannot explain experience, the

objective aspects of a political tract, or a snuff film cannot alone
explain them as an experience. Neither can they be explained by
attaching labels such as pornography or expression. Their meaning
must come from a description that starts with conscious intention-
ality. Experiencing a political tract is qualitatively different from
experiencing a snuff film. That they are in some ways similarly
packaged it not the crucial test. But rather it is the way people
experience them. Perhaps our experience of the film Snuff could be
equivalent to our reaction to The Federalist Papers. If so, fine. If
not, then we should search for what makes a subjective, qualitative
difference. The world out there need not be forced into a Procrustean
bed.
After all, even the Miller test ultimately and unavoidably does
not simply look to the world out there. While many might argue
that Miller is an effort to objectivize the obscenity decision, by
virtue of its reliance upon the views of the average person applying
contemporary community standards, it invites us to examine the
transcendental principle of pornography from the point of view of
how it appears in subjective experience. A phenomenologist would
argue that what is wrong with the obscenity law is not so much the
Miller test per se, but the illusive quest to objectify it.51
MacKinnon bases her critique of objective legal formalism more
on her claim that it promotes inequality in a male-dominated society
than on any epistemological difficulties it may have. Nonetheless,
when she argues that sexual equality can be an “agreed-upon social
ideal,” she hereby offers for consideration a classic transcendental
expression manifest in a variety of subjective experiences.52 Instead
of looking at the rendition of facts in a film, for instance, to explain
the human reaction, we could examine instead the experience of
being treated unequally in a variety of situations to explain the film
and determine public policy on that basis.

51
Typical are the conclusions drawn by a 1977 study by the NYU Law Review
that Miller was ineffective due to the fact evaluations of sexually explicit mate-
rials were largely subjective and, yet, legally objective standards were ineffec-
tive because jurors based their decisions on personal predilections. (Leventhal,
pp. 911–913.)
52
MacKinnon, Catharine, Toward a Feminist Theory of The State (Cambridge:
Harvard University Press, 1989), p. xii.
 THE PHENOMENOLOGY OF PORNOGRAPHY 197

CONCLUSION

In the final analysis, to MacKinnon and those in her camp, the

decision to consider all forms of pornography as “only words” is
tantamount to deciding to allow a large segment of the community
to suffer continuing harm. The belief that words cannot hurt, cannot
do anything is at the heart of the adage that every school child knows
well: Sticks and stones may break my bones, but words will never
harm me. Yet, every school child, and self-confessing adult for that
matter, also knows that the saying is simply not true. Everyone carries
some enduring pain administered by words. The damage from words
may be different, but it is just as real.
Yet people are loath to admit the hurt caused by words, and even
less inclined to do anything about it, not because the hurt does not
exist but because people adhere to an epistemological paradigm that
recognizes only scientific evidence as real data, hence the protest
that non-physical manifestations of pain are too subjective to be
considered real, hence the need for phenomenology. If we wish to
aspire to be a society that is truly kinder and gentler, we must explore
the possibilities and ramifications of, if not phenomenology, at least
something which goes beyond the limiting confines of rationalism
and empiricism. Regardless of the merits of MacKinnon’s premise
that pornography can be more than mere words, the entire commu-
nity will suffer if she is not allowed to even argue her position
simply because we have no intellectual tools with which to listen.
Suppressing her position for lack of the intellectual tools to engage
it is as much suppression as “banned in Boston.” Neither is very
productive and in the end more damaging than only words can
express.

APPENDIX

“Pornography is the graphic sexually explicit subordination of

women, whether in pictures or in 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
198 CLYDE E. WILLIS

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
(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. Pornography also includes the use of
men, children, or transsexuals in the place of women. Pornography,
thus defined, also is discrimination on the basis of sex, and as such,
a civil rights violation.” (Feminism Unmodified, p. 262)

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Valdosta State University
Valdosta, Georgia,
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