The Real Sexual McCarthyites Back Clinton
Larry Flynt and Betty Friedan aren't really such strange bedfellows.

The Wall Street Journal, Tuesday, December 22, 1998

Even in his darkest hour, Bill Clinton's amazing political skills were on display. Who but our impeached president could have brought together feminists and Larry Flynt, especially on an issue involving sex? Last Thursday Mr. Flynt, the publisher of Hustler magazine, joined Mr. Clinton's cause by "outing" would-be Speaker Bob Livingston's sexual transgressions and threatening other Republicans with the same treatment. Two days earlier, a gaggle of prominent feminists, including Betty Friedan and Eleanor Smeal, had descended on the Capitol, where they declared their fidelity to the hustler in the White House.

Strange bedfellows indeed. But this convergence is not as surprising as it seems, for contemporary feminists have a lot in common with pornographers. Both are staunch opponents of Victorian hypocrisy and traditional notions of morality and decency. Both have for years used the legal system to wage war against sexual privacy. If we find ourselves in an era of "sexual McCarthyism," feminists and pornographers deserve far more of the blame than Ken Starr does.

Today's sexual climate owes a great deal to a pair of Supreme Court cases: Meritor Savings Bank v. Vinson (1986), which declared sexual harassment a form of discrimination, and Miller v. California (1973), which defined the limits of obscenity law. Each case introduced sex into an important area of the law in a way that legislators could not have anticipated.

In Meritor the court adopted the theory, developed by feminist legal scholar Catharine MacKinnon in her 1979 book, "Sexual Harassment of Working Women," that harassment is a form of sex discrimination actionable under Title VII of the Civil Rights Act of 1964. This decision opened the door to massive invasions of privacy by plaintiffs' lawyers seeking to establish "patterns" of workplace sexual misconduct.

The inquisition Mr. Clinton faced at the hands of Paula Jones's lawyers was no worse than what any defendant in a harassment case must endure. In fact, as Monica Lewinsky discovered, alleged harassers aren't the only ones who are subject to the intrusions of harassment law. Consider the plight of Celia Farber, who had a consensual affair with her employer, Bob Guccione Jr., son of the founder of Penthouse magazine. In 1994 Staci Bonner, an ex-employee, sued Mr. Guccione, then the owner of Spin magazine, charging him with harassment. In an effort to establish a pattern of favoritism toward those who complied with Mr. Guccione's alleged advances, Ms. Bonner's lawyers called Ms. Farber as a witness.

"Over a period of almost three years, I was subpoenaed for thousands of pages of documentation, including every draft of every article I ever wrote, my entire academic record, love letters, diaries and documentation of any 'dates,' 'gifts' or any other physical remains of the affair," Ms. Farber wrote last year in Salon, the online magazine whose scribes have lately been vying with Mr. Flynt for the Pulitzer Prize in mud. "An investigator called my first editor four or five times and asked him whether he ever saw me and Bob touch each other, whether we ever left the building together, whether we ever held hands."

Ms. Jones's lawyers similarly were trying to establish a pattern of favoritism when they asked Mr. Clinton about his relationship with Ms. Lewinsky. It was harassment law that put the president in a position to lie under oath and obstruct justice, the crimes for which he has been impeached. If Mr. Clinton's defenders think his privacy has been violated, they should complain to feminists and the Supreme Court, who made the rules, not to Ms. Jones and Mr. Starr, who merely followed them.

Privacy's counterpart is discretion, a virtue that renders pornography anathema. Pornography moves sex from the private realm of intimacy to the public one of commerce. Of course, direct trade in sex--that is, prostitution--is illegal everywhere save Nevada. But thanks to Miller, commercial displays of sexual acts and organs, in print and on stage, screen and Internet, are considered "expression," protected by the First Amendment.

In theory, First Amendment protection of pornography is not absolute; Miller held that obscenity, as defined by "community standards," may be outlawed. But since any legislative assertion of community standards is subject to judicial review, this qualification is at best a fig leaf, ensuring endless lawsuits over attempts to restrict pornography. Such litigation is a perverse morality play that pits local bluenoses against self-proclaimed champions of free speech, often with preposterous results, as in last month's federal court ruling that a public library in Virginia must allow children access to Internet porn.

The imprimatur of the First Amendment allows a dealer in depravity like Mr. Flynt to pose as a pious patriot, standing, as it were, on the stepladder of the Constitution and pretending to occupy the moral high ground. He practices intolerance while preaching tolerance, exposing the peccadilloes of social conservatives, as if their weaknesses disproved their principles. And journalists, those paragons of hardheaded skepticism, fall for the hustle: On CNN's "Reliable Sources" Saturday, Jim Warren of the Chicago Tribune lauded Mr. Flynt as "part of this wonderful continuum in American journalism history of the mainstream media, a little bit staid, being pushed to the fringes by newcomers."

If Meritor and Miller unleashed ugly forces in American society, one must concede that there are arguments in their favor. It's easy to sympathize with the desire for legal sanctions against workplace conduct that is truly reprehensible--a governor of a small Southern state exposing himself and demanding sexual favors from an unwilling low-level employee, to take a hypothetical example. And obscenity laws have been used to suppress legitimate artistic expression, such as James Joyce's "Ulysses."

But sex is a complicated, mysterious and deeply private matter, one that ought to be governed more by manners and morals than by laws. Harassment law is a poor substitute for decency, First Amendment absolutism a poor substitute for tolerance. Decency and tolerance are the cornerstones of privacy; their decline is at the root of today's sexual McCarthyism.

Whatever Mr. Livingston's misdeeds and whatever his motives, his resignation Saturday was an act of decency. By giving up power, he reclaimed his privacy and spared his family, his party and his country further embarrassment. Alas, at the White House, this is simply incomprehensible. Just an hour after Mr. Livingston's announcement, Mr. Clinton sent forth his press secretary, Joe Lockhart, to urge the would-be speaker to reconsider. After he was impeached, Mr. Clinton himself emerged to declare that he will never resign.

Of course he won't. It would be the decent thing to do.

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