Sam Pickett ‘21
News Editor
This past Thursday, February 6, Catherine A. MacKinnon delivered the 2020 McCorkle Lecture, entitled The First Amendment: An Equality Reading. MacKinnon is a professor at the University of Michigan Law School and has been a visiting professor at Harvard Law School since 2009. She has written dozens of books, but is perhaps best known for her work arguing that sexual harassment constitutes sex discrimination. In fact, in 1980 the Equal Employment Opportunity Commission followed her framework on sexual harassment in prohibiting quid pro quo harassment and hostile work environment harassment. She also represented Bosnian women survivors of Serbian genocidal sexual atrocities in a case where she won a $745 million verdict at trial in 2000. The case represented the first time that rape was considered an act of genocide. These are just a few of MacKinnon’s accomplishments, which, as Dean Goluboff noted, show her commitment to ending the inequality that affects women’s lives.
Before MacKinnon began, Dean Goluboff gave an introduction discussing the origin of the McCorkle Lecture Series. The series is funded by the wife and son of Claiborne Ross McCorkle, who graduated from UVA Law in 1910 and gained fame when he prosecuted two leaders of a lynch mob in 1920, securing their conviction and dealing a severe blow to mob violence in southwest Virginia. This lecture was particularly important, Dean Goluboff said, because it marks the 100th anniversary of co-education at UVA Law—Elizabeth Tompkins was admitted to UVA Law in 1920. Dean Goluboff also recognized, however, that it took another forty-seven years for the first African American woman, Elaine Jones ’70, to be admitted. The Dean was careful to point this out because, “as we celebrate our milestones in the story of gender and sex equality, we have to locate these stories and milestones within the similarly messy stories of the inequalities experienced by others.” The Dean’s comments, which coincided with UVA’s Diversity Week, were a strong reminder of how far we have come and how much more work we all have to do.
Beginning her lecture, MacKinnon started by giving the Dean a shout-out, remarking that it is not often that you have a Dean who has something worth listening to every time they speak.[1] MacKinnon’s talk[2] was based on the general principle that the First Amendment began as a weapon for the powerless, but it has since been transformed into a weapon for the powerful. While the First Amendment was initially meant as a defense against the power of the state, it is now a “sword used by racists, anti-Semites, and corporations buying elections in the dark.” Consequently, public speech has escalated in its abusiveness, with the offensive groups making themselves seem as if they are the victims and positioning themselves as just debaters giving opinions. In the meantime, the voices challenging inequality in the world are muted and further abused, all in the name of free speech. Much of MacKinnon’s subsequent research has focused on how we have arrived at this point; she traced various Supreme Court cases dealing with free speech to see how the doctrine has shifted from “content neutrality” to “viewpoint neutrality.” The problem with this shift, MacKinnon argued, is that neutrality is rooted in the abstract notion of “formal equality” that lacks substantive direction. This doctrine enforces social inequality and silences the speech of the disadvantaged and subordinated. One example she gave was the constitutionalization of the law of libel. While I had always taken for granted that making it hard to sue under libel was a good thing, MacKinnon challenged that perspective by demonstrating how it made the media, an already powerful social institution, even more powerful and made it unnecessary for the law or the public to consider the power to publish falsehoods.
MacKinnon then transitioned from discussing libel to discussing obscenity, and more specifically, pornography. MacKinnon discussed how obscenity protected pornography, despite the fact that the harms of the production and consumption of pornography have been empirically demonstrated for many years. The major theme of the speech was clear: The weaponization of the First Amendment by society’s powerful groups did not “come out of nowhere” and it is not counterbalanced by the neutrality. MacKinnon advocated for a return to the First Amendment’s protection of dissent and for a building into the First Amendment a substantive understanding of inequality that would help the Court expose expressions of inequality and support expression by subordinated groups about their inequality.
MacKinnon’s speech was fascinating and seems as groundbreaking as her work on sex discrimination. She challenged many of my own notions about the law and has inspired me to reconsider my own view on the First Amendment and the role it plays in the power dynamics of our society.
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shp8dz@virginia.edu
[1] We at the Law Weekly also stan Dean Goluboff.
[2] I would like to say ahead of time that I did my best to follow MacKinnon’s speech, but there were certain portions that admittedly went over my head. She mentioned many Supreme Court cases and I would have liked to have been able to read the speech so I could fully absorb it. That being said, this is my best effort.