1 See, e.g., Schauer, , Speech and “Speech”—Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L. J. 899 (1979).Google Scholar

2 Thus, Barry Lynn defines pornography as “written or visual material produced commercially to arouse sexual feelings or fantasies.” Lynn, “Civil Rights” Ordinances and the Attorney General's Commission: New Developments in Pornography Regulation 21 Harv. C.R.-C.L. L. Rev. 27, 30 n.10 (1986) (emphasis added). Anti-pornography feminist Catherine MacKinnon claims that pornography is an “$8 billion a year industry.” MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C.L. L. Rev. 1, 31 (1985).Google Scholar

3 See Lynn, supra note 2.Google Scholar

4 As one commentator puts it, pornography promotes a vision of “pornotopia,” a view of sexual conduct implying “easy freedom without consequences, a fantasy of timelessly repetitive indulgence.” Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. Pa. L. Rev. 45, 81 (1974).Google Scholar

Professor Van Den Haag describes pornography's message in this way: By de-individualizing and dehumanizing sexual acts, which thus become impersonal, pornography reduces or removes the empathy and the mutual identification which restrain us from treating each other merely as objects or means. This empathy is an individual barrier to nonconsensual acts, such as rape, torture, and assaultive crime in general. Without such empathy, we are not humane to each other. … Pornography, thus, is antihuman and antisocial. If we do not feel empathy, then others are easily relegated beyond the pale, to become merely means. By inviting us to reduce others to sources of sensation, pornography destroys the psychological bonds that bind society. … Pornography, in exalting the instrumental use we can make of each other, depreciates and destroys the emotions that go with devotion to or consideration for others, as ends. Yet love and affection are precious—and precarious—heritages of our civilization and their socialized modes, compassion and empathy, are indispensable to it.Google Scholar

Van Den Haag, Censorship: For and Against, 143, 146 (1971).Google Scholar

5 See Lynn, supra note 2, at 87–121.Google Scholar

6 The liberal view begins, of course, with John Stuart Mill's essay On Liberty. For a modern restatement and defense of the liberal argument against all forms of legislated morality, including anti-prostitution and anti-homosexuality legislation as well as obscenity law, see H.L.A. Hart, Law, Liberty and Morality (1962). For related arguments, see R. Dworkin, Do we Have a Right to Pornography?, in A Matter of Principle (1985) and R. Dworkin, Liberty and Moralism, in Taking Rights Seriously 256–258 (1979).Google Scholar

7 The traditional conservative argument is nicely summarized in Dworkin, Liberty and Moralism, supra note 6, at 256–258.Google Scholar

8 See generally, MacKinnon, C., Feminism Unmodified: Discourses on Life and Law (1987) and Dworkin, A., Against the Male Flood, 8 Harv. Women's L. J. 1 (1986).Google Scholar

9 See, e.g., Pleasure and Danger: Exploring Female Sexuality (C. Vance, ed., 1984); Kensington Ladies' Erotica Society, Ladies' Own Erotica (1984): Women Against Censorship (V. Burstyn, ed., 1985).Google Scholar

10 Attorney General's Commission on Pornography, Final Report, Victimization, 767–837 (1986).Google Scholar

11 The Commission's charter defined pornography as a “problem,” thus begging the question. Report, The Commission and Its Mandate, Id., at 215–218.Google Scholar

According to Lynn, the Attorney General's Commission heard from “a few witnesses who suggested the removal of all restraints on adult access to sexually-oriented material,” but that “those who advocate bolstering first amendment protection for sexually-oriented speech have not found the Commission to be a receptive audience.”Supra note 2, at 47–48. Based on Hearing Transcripts, Lynn reports that the Commission heard from Barry Lynn and Isabelle Prizler of the ACLU, Burton Joseph of the Playboy Foundation, and Nan Hunter of the Feminist Anti-Censorship Taskforce. Id., at 47, note 74. Their testimony is not, however, reflected in the Commission's final report.Google Scholar

The report acknowledges that its findings may be skewed by the fact that people who value, use, and enjoy pornography may have been deterred from appearing because of its illegality. Report, supra note 10, at 221.Google Scholar

12 For example, while the report contains a chapter entitled The Question of Harms, Id., at 299–353, there is no chapter entitled Benefits, nor is there any discussion, or even recognition, throughout the report that some pornography may benefit some people some of the time.Google Scholar

13 This comes through most strongly in the report's discussion of harms, Id., at 9–18, which I discuss infra. See also the report's discussion of the Civil Rights Approach to Pornography, in which the Commission approves the general idea of using private civil rights as an enforcement mechanism but limits the concept of “pornography” to its traditional obscenity-based definition, instead of adopting the “subordination” approach of the feminist ordinance. Id., at 391.Google Scholar

14 Gordon, Variety: The Pleasure in Looking, in Pleasure and Danger, supra note 9, at 194.Google Scholar

15 Kruger, No Progress in Pleasure, in Pleasure and Danger. Id., at 210.Google Scholar

16 Gordon, supra note 9, at 191.Google Scholar

17 Olds, Bestiary, in Pleasure and Danger, supra note 9, at 426.Google Scholar

18 Cantaro, Anti-Climaxes, III Women's Rev. of Books II (May 1986).CrossRefGoogle Scholar

19 Id.Google Scholar

20 See, in addition to the authorities infra note 9, FACT Amicus Brief, American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985).Google Scholar

21 See, e.g., DuBois and Gordon, Seeking Ecstasy on the Battlefield: Danger and Pleasure in Nineteenth Century Feminist Sexual Thought, in Pleasure and Danger, supra note 9, at 31, 43.CrossRefGoogle Scholar

22 See, e.g., Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, in Pleasure and Danger, Id., at 267.Google Scholar

23 See M. French, Beyond Power: On Women, Men and Morals (1985).Google Scholar

24 See Kruger, No Pleasure in Progress, in Pleasure and Danger, supra note 9, at 210.Google Scholar

25 Hollibaugh, Desire for the Future, in Pleasure and Danger, Id., at 403.Google Scholar

26 See, e.g., MacKinnon, Feminism Unmodified, supra note 8, at 127–214, and Dworkin, Against the Male Flood, supra note 8.Google Scholar

27 See supra note 20.Google Scholar

28 Rubin, supra note 22, at 402–403.Google Scholar

29 Id.Google Scholar

30 Although anti-censorship feminists are in danger of reducing their position to simple libertarianism, as anti-pornography feminists are in danger of reducing theirs to a rigid sexual authoritarianism, nevertheless, anti-censorship feminism is not liberalism, and anti-pornography feminism is not conservatism. As Rosemarie Tong has argued:.Google Scholar

Tong, The Minneapolis Ordinance and The FACT Brief, III Women's Rev. of Books 7 (May, 1986).Google Scholar

31 See Richards, Free Speech, and Van den Haag, Censorship: For and Against, supra note 4.Google Scholar

32 See MacKinnon, supra note 2, and Dworkin, supra note 8.Google Scholar

33 See Lynn, supra note 2.Google Scholar

34 See notes 4 to 9 and accompanying text infra.Google Scholar

35 See, e.g., Lynn, supra note 2, and Emerson, , Pornography and the First Amendment: A Reply to Professor MacKinnon , 3 Yale L. & Pol'y Rev. 130 (1984).Google Scholar

36 MacKinnon, supra note 8, at 161.Google Scholar

37 See, e.g., Hollibaugh, Desire for the Future: Radical Hope in Passion and Pleasure; Dimen, Politically Correct? Politically Incorrect?; Allison, Public Silence, Private Terror, Pleasure and Danger (1093); and P. Callifia, Sapphistry (1981).Google Scholar

38 West, Women's Hedonic Lives: An Alternative Basis for Feminist Legal Theory, 2 Wisc. Women's L. J. (1987).Google Scholar

39 See Ward v. Illinois, 431 U.S. 767 (1977).Google Scholar

40 See Report, at 74, “No place for S/M pornographic materials deemed legally obscene.” Similarly, one commissioner describes a “woman kneeling submissively in the act of fellatio” as “gruesome,” and as on par with “women being penetrated by broom handles, smeared with feces, urinated upon and covered in blood.”Google Scholar

41 MacKinnon, supra note 8.Google Scholar

42 Compare the feminist argument in the Harms chapter with the individual commissioners' statements, at 29–30, 42–43, 45, 51, 82–83, 95–98, 106–110, 117–134, 339.Google Scholar

43 Vance, The Meese Commission on the Road, The Nation 65 (Aug. 2, 1986).Google Scholar

44 See, e.g., Sunstein, Pornography and the First Amendment, 1986 Duke L. J. 589 (1986).CrossRefGoogle Scholar

45 Rubin, Thinking Sex, supra note 22, at 298.Google Scholar

46 Lynn, Regulation, supra note 2, at 74–76.Google Scholar

47 MacKinnon, Feminism Unmodified, at 160–166.Google Scholar