Pornography and Democracy

Peter Niesen*

At the time of the pornography discussions in the late 1970s, when the WilliamsReport was published in Great Britain, the assumption was that the fact thatpornography was offensive no longer represented adequate grounds to restrict itlegally. Attempts to legislate a specific sexual ethic had also come to appear highlydubious.1 All one had to do was demonstrate a negative: that, leaving moraloutrage aside, there were no good reasons to restrict pornography. Those opposingpornography tended to come from religious or traditionalist groups, and they wereunable to argue plausibly that their own particular values should be extended to –or remain extended to – society at large. In the philosophy and practice of democ-ratic politics today, there seems to have been a shift in the burden of proof, whichcoincides with new interpretations of the meaning, effect, and function of pornog-raphy. Pornography is no longer being characterized as a marginal social phenom-enon, the state regulation of which is demonstrably repressive. In one depictionnow, it is an expression of the disciplinary structure of the dominant culture, whichuses pornography to consolidate its dominance. Earlier arguments related to theprivate sphere of sexuality. The point today is the way pornography encroachesupon the public sphere. Sexual self-determination for homosexuals was ananalogue of permissive pornography policy. The analogue today is racial discrim-ination. Not only the opponents of absolute freedom of communication arecharged with McCarthyism, but also its proponents.2 Liberal free speech advocatesused to side with political and religious dissidents. Now they find themselvesdefending racists, neo-Nazis, and pornographers.3 Critical ideological intentionswere ascribed to pornography in the earlier period. Now it is being exposed for itsrole in stabilizing domination. Even the self-confidence of repressed minorities orgroups that proponents of pornography still had on their side fifteen years ago hasgone over to the opponents. While the idea earlier was that a privileged groupshould stop interfering in the personal and political self-determination of a disad-vantaged group, the idea now is that a privileged group should stop interfering inthe personal and political self-determination of a disadvantaged group.

The following is a reconstruction of the more recent debates against the back-ground of US constitutional law. I chose this approach, not only because it is thebackground naturally assumed by the Americans involved in the debate, but alsoand especially because doing so introduces an alienation effect into the discussionwhich causes the normative schema that informs it to emerge more clearly. Thearguments that underlie different conceptions of democracy, in particular, emergemore distinctly if we adopt the method of the US Constitution itself, and limit

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discussion to a single right to free expression. This is an alternative to departmen-talizing the issues involved from the outset, referring them to freedom of belief orartistic expression, to youth welfare, to the right in general to one’s own identity,etc. Whatever else pornography might be, certainly it does entail interpretableexpression with representational content, in a broad sense of speech on which thisargument is based. “Because society is made of language,”4 it would not be appro-priate to deprive problematic expression ad hoc of its character as speech.

I am primarily interested in three questions. First are the analogies being drawnbetween pornographic expression and speech – such as racist speech – thatdiscriminates against a group. Since these analogies may not be meant in asystematic way, I take them up in the same spirit, considering their plausibility asthey are invoked in individual cases. Second, which conceptions of democraticfree speech supply arguments for or against pornography, and to what under-standing of free speech can proponents and opponents of pornography appeal?Third, finally, comes the difficult question of when the effects of free speechencroach upon the free speech of others.

I. Paradigm Shift in the Understanding of Pornography

1. Obscenity and Pornography

The First Amendment to the U.S. Constitution, insofar as it is of interest here,states: “Congress shall make no law…abridging the freedom of speech, or of thepress.”5 Established constitutional law qualifies this general norm by holding thatobscene speech is not protected and therefore can be subject to legal limitations.Obscene expression “appeals to the prurient interest, is patently offensive[according to prevailing social standards], and lacks serious social value”6 whenconsidered as a whole (a judgment made, for example, when it serves solely as anaid to masturbation). If obscenity causes harm or exacts costs, the harm consistsin its “offensiveness,” that is, in that it offends, disgusts, irritates, insults, or under-mines social decency and prevailing moral standards.

In pornography, as opposed to obscenity, according to legislation co-drafted byfeminist legal scholar Catharine MacKinnon, something altogether different is atstake. Pornography is “the graphic sexually explicit subordination of womenthrough pictures and/or words” insofar as it is combined with the depiction ofcertain objectifying or violent characteristics and situations, among them represen-tations of women as inferior or exclusively in terms of body parts, the representa-tion of women as sexual objects “who enjoy humiliation or pain,” experience“sexual pleasure in rape,” or are “presented in postures or positions of sexualsubmission, servility, or display.”7 Among other purposes, this definition of pornog-raphy served as the basis of an ordinance passed by the city of Indianapolis that wasintended to allow women to file damage suits in civil court against the producers ofpornography.8 The definition itself is intended to cover a spectrum of material,

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from certain images from Playboy to sadistic pornography and snuff films,9 but,because the ordinance generated no precedents, it remains uncertain just whatkinds of “pornography” in the vernacular sense would have been covered.

The distinction between pornography and obscenity consists most immediatelyin the gender asymmetry of pornography, which reflects relations of genderdomination in mainstream production, content, and consumption. The definitionof pornography is geared to heterosexual or structurally analogous representa-tions, using this same standard to evaluate homosexual material.10 Pornographyentails the representation of subjugation, objectification, violence, and compul-sion by men against women, in MacKinnon’s view, and thus, by implication, notsimply the threat, but the reality of these harms.11 The alleged connectionbetween the representation of subjugation, the promotion of subjugation, andsubjugation itself, or between the content of pornography and its effect, is alreadypresent in the definition of pornography. Pornography further distinguishes itselffrom obscenity in that the moral standards of the community play no role in defin-ing it, at least not officially. The harm done by pornography is regarded as resid-ing not in the offensiveness of the material, but in the oppression of women. Thedistinction between socially valued and valueless speech is not invoked, whichmeans that no defense of pornographic representation traditionally regarded asvaluable – in the arts, for example – is intended.12

Mainstream constitutional interpretation finds anti-pornography legislationsuch as this defective on the grounds that the regulation of speech involved isbased on the speaker’s standpoint. The ordinance discussed above was declaredunconstitutional shortly after taking effect, because it violated the constitutionallyguaranteed right of free speech.13 The reasoning was based on the followingdistinctions: interference with free speech has traditionally been crudely classified– in order of increasing undesirability – as content-neutral, content-based, andthen, finally, standpoint-based. An example of content-neutral restriction wouldbe a general prohibition of demonstrations in a certain area, while the prohibitionof price-fixing is a content-based restriction. A content-based restriction is stand-point-based if it permits the expression of the contrary viewpoint, e.g., if it rulesout commercials in favor of, but not against, taking hard drugs.14 With a smallnumber of exceptions, standpoint-based restrictions are considered unconstitu-tional quasi-automatically, and content-based restrictions have at least a presump-tion against them. The definition of pornography given above, however, identifiespornography by the content of representations, and violating standpoint neutral-ity could seem to be the point of MacKinnon’s ordinance, as pornography’s stand-point basis is blamed for the damages it causes.15

2. Arguments against Pornography

What is meant here by “the subordination of women through pictures and/orwords” requires explanation. It seems useful to distinguish four types of cases in

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which pornography is suspected of causing serious harm. The first has to do withthe production of pornographic material, the others primarily with the consump-tion of it.

a) The production of pornography subjects the women represented in it tomultiple forms of abuse, violence, risk, and exploitation.

b) The consumption of pornography causes or constitutes sexual violence.c) Confrontation with pornography has harassing, insulting, intimidating, or

coercive effects on women.d) Pornography silences women: it impedes the autonomous articulation and

realization of their interests, and thus interferes with them making use of theirown free speech rights.The way this highly diverse set of dangers and damages is ordered can be inter-preted as a continuum, stretching from the “tangible real-world harms”16 that arealready recognized in the established accountability scheme, to more abstract prob-lems in the communicative or symbolic dimension, such as the violation of seman-tic autonomy or interfering with the “unleashing of the feminine imaginary.”17

a) Perhaps the most obvious “real-world harms” occur during the production ofpornography, which, to stick to a few uncontroversial examples, involves multi-ple forms of compulsion and extortion, occasions a large number of crimes thatgo unprosecuted, produces representations of force in part by using force, andsubjects those engaged in it to exploitative working conditions and an enhancedrisk of AIDS. This diagnosis goes essentially undisputed; nevertheless, proposalsas to what should be done diverge widely, from criminalizing pornography tounionization and entrepreneurial initiative among its workers. Also controversialis the extent to which involvement in pornography can be said to be “voluntary”in the normal capitalist sense of the term. Considerations bearing on the funda-mentally involuntary aspects of the involvement of children and the damages theysuffer in the production of pornography provide all authors with a shared basis infavor of prohibiting child pornography.18

b) Is there a causal connection between the consumption of pornography andsexual violence? In MacKinnon’s account, based on a robust model of causality,it is possible to isolate the following three, successively stronger theses:

(1) Men who consume pornography want to and “sooner or later, in one way oranother” will act it out.19 Privately and within the structures of professional andpolitical life, they will behave according to the model of pornography, whichexpresses itself in both latent and manifest violence and oppression.

(2) The typical effect of pornography consumption is sexual abuse. Direct causalrelationships hold in individual cases and can be demonstrated statistically on thelevel of society.20

(3) The consumption of pornography represents an act of sexual violence.

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The identification expressed in thesis (3) is less an argument than a proposalon how to use the words “sexual violence,” which can be accepted or rejected. Theproposed usage is based on the idea that the sexual use of representations formasturbation is a form of direct access to those represented in them; MacKinnonspeaks in this context of “sexual access,” the contact via representation to therepresented: “The men have sex with them in their own three-dimensionalbodies.”23 Such terminology seems, however, to make it more difficult to differ-entiate cases of sexual violence (those with and without victims), and is thereforenot very helpful.

Thesis (2), which sees pornography as the cause and rape as the effect, hasalways been the focus of attention in the pornography debate, not least becausesuch stimulus-response schemas suggest the possibility of translating psycholog-ical and sociological facts directly into policy measures. Everyone involved in thedebate recognizes that the proof of a causal tie would be an important, perhapsdecisive argument in favor of regulating pornography.22 Nevertheless, pauseseems called for on a number of grounds. First, the question of a causal correla-tion is always being discussed anew in regularly recurring debates over the find-ings of influence research, apparently with no prospect of consensus.23 The resultof this has been to transform a political debate largely into a discussion aboutwhich of the contradictory studies is most plausible. Second, a deterministicbehaviorist thesis calls for social engineering, not necessarily a democratic solu-tion to existing conflicts, and thus transposes a conflict between citizensconducted from participants’ points of view, into the perspective of an objectiviz-ing observer. The deterministic vocabulary assimilates the structure of a debatedealing with symbolic objects to that of debates dealing with the relative dangeror lack of it from poisonous or radioactive substances. That seems to be a cate-gory mistake. Ultimately, the causality thesis suggests the existence of forces ofnature that both individuals and societies can prohibit and repress, but not controlor integrate. It is possible to have reasonable doubts as to whether pornography issuch a phenomenon. Maybe “it is naive to believe that anything other words cando is as powerful as what pornography does.”24 Nevertheless, it must be asked ofa strict causal model whether it allows enough room for nurture and education, forrational confrontations with and about pornography, for social and personal learn-ing. It appears, moreover, to offer no reasonable perspective on the prohibition-like underground or black market that would no doubt remain, even given themost restrictive pornography policies. For all of these reasons, it seems justifiedto bracket the disputed causal hypothesis in the discussion that follows.

Thesis (1) can also be sensibly discussed independently of the stimulus-response schema. The thesis states that there is no such thing as the “private”consumption of pornography, because pornography necessarily influences men’sperception of women in the family, at work, and in politics. Pornographic repre-sentation does not occupy some sleepy nook in the texture of male desires andconvictions, as a liberal “art of separation” might suggest. Rather, it is part of the

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way that they structure the social reality of women, “the woman in pornographybecoming more and more the lived archetype for women’s sexuality in men’sexperience.”25 Conversely, pornography stabilizes subordinating relationshipsbetween men and women by eroticizing subjugation, the reproduction of whichthen requires no force, but can be left to the “freedom” of socialized desires.26

These two problems regarding an incomplete or failed privatization of pornogra-phy are lent more concrete form by the two remaining points. The first concernsthe way women are intentionally or unintentionally confronted with pornography;the second concerns its more abstract effects on social life in the public sphere,where women’s power and agency are being structured.

c) Attending to the way women are directly and intentionally confronted withpornographic products is one way in which the new pornography debate hasmoved beyond the older one. Picking up on changes in the laws on sexual harass-ment in the workplace, for example, or drawing analogies to racist and antisemitichate speech makes it possible to rethink this question. Independently of how weinterpret such a confrontation – as an insult, an act of harassment or coercion, ora threat – the use of pornographic material here counts as pornographic expres-sion. However, hate speech and sexual harassment are both regulated in specificsettings, such as university campuses or the workplace. They can be prosecutedwithout violating constitutionally guaranteed freedom of speech because of twoaspects they share: one the one hand, the expression is directed toward specificindividuals and, on the other, the settings in which the expression takes place arebounded.27

It would seem necessary to assess the issue differently if pornography is beingforced on women, in contrast to the case when pornography simply exists and theharms it allegedly causes result from merely knowing of its existence. However,two aims of the feminist critique must be kept distinct. First is the concrete, indi-vidual confrontation that can be understood as coercion.28 Beyond this, however,the public sphere as a whole can be experienced as a “hostile environment”because of its constant domination by “the masculine imaginary.” DrucillaCornell, for example, does not hold the view that being confronted with sexuallyexplicit material automatically entails insult or compulsion, but she does believethat pornography harms women on a much more abstract level, because in publicspace “it is almost impossible to escape it.”29 She stresses that the insult lies notin the individual instance of pornography, but in the “confrontation with theimages in their inevitability, because they are allowed to pervade our public spaceso thoroughly,”30 basing her argument on the difference between an insult thatcan be avoided and an insult that is “in one’s face.”31 Cornell therefore argues forthe establishment of zones to which the free availability of pornography islimited.

Such a territorial restriction, even though the object of the restriction is identi-fied solely on the basis of content, seems not to be incompatible with the freedom

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of speech. This becomes clear when we view this same situation of involuntaryconfrontation from the opposite perspective, namely, from the angle of peopleexpressing themselves pornographically. Here an important difference betweenpornography and hate speech is introduced into the balance. Hate speechnormally “works” only when it reaches those whom it is about. A privatization ofhate speech on the model of pornography zones would be counterproductive to itsgoals because the intended discrimination would not work. Pornographic expres-sion, which is accused of intentionally discriminating, could perhaps avoid thischarge more convincingly the more clearly it refrained from involuntaryconfrontation. Such a distancing or privatization strategy, however, createscomplications that are not foreseen by the traditional liberal model of the publicversus the private sphere. To avoid involuntary confrontations, pornography with-draws further out of public space into the private sphere. This private sphere,however, would then typically no longer be the same for women and men: theprivate sphere of women, even in their intimate relationships, would have to bedefended against involuntary confrontation with pornographic material.Questions can be raised as to whether the autonomy of women in heterosexualrelationships is threatened by “pornography in the home” and whether, in analogyto harassment at the workplace, it makes sense to speak of “domestic harass-ment.”32 Despite the soundness of the reasoning, the difficulties and dangers thatwould be caused by the application of legal measures in such settings are evidentand probably decisive.

That pornographic harassment can be likened to hate speech is one of thereasons for the shift in analogues in the pornography discussion from the rights ofhomosexuals to racism and antisemitism.33 This is both perfectly consistent, aswill be seen below (II.1), and deeply ambivalent. On the one hand, it documentswhat the public at large perceives as plausible, while, on the other, it makes iteasier for very different phenomena to be forced, in a functionalizing way, toconform to one general conception of repression.34 Nor does the analogy as suchproduce clear results: Catharine MacKinnon and Ronald Dworkin appeal todiametrically opposed intuitions, for example, when they respectively advocateand oppose restrictions on pornography precisely because it is comparable toracist and antisemitic speech.35

d) A further class of cases can be understood in terms of a more abstract, politi-cal interpretation of subordination and oppression. The feminist intention here isto characterize pornography, insofar as it contributes to social inequality, as aviolation of civil rights. Subordination and oppression, then, are not so much acts,experienced or not by this or that woman, as latent social factors that structure thelife chances of all women equally. The reasoning adduced in this context that ismost widely known, and to which I must limit discussion, is the so-called “silenc-ing argument.”

The silencing argument derives from considerations of autonomy. It states that

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pornography is a hegemonic hostile description that robs women of anautonomous language, hinders them in the development of an independent iden-tity, and disempowers them on the level of securing their interests. Pornographicrepresentation, in this view, contributes to a stereotyped perception of women inthe public sphere and an inauthentic ascription of needs to them, and, finally,defeats women’s attempts to generate and make use of attention in the politicalsphere.36 The elegance of the argument comes from the fact that it is immanent tofree speech rights – it pits the free speech of women against the free speech ofpornographers. “[L]iberalism has never understood that the free speech of mensilences the free speech of women. It is the same social goal, just other people.”37

The conflict is not construed in a way that requires balancing “values,” not to saybalancing “freedoms,” against each other. At dispute, rather, is whether the porno-graphic free speech rights of each are compatible with the general free speechrights of all.

In the discussion so far, it has remained unclear how literally expressions suchas “silencing” and “gagging” are to be taken and how direct the influence ofpornography on the indisputably unequal treatment of men and women is under-stood to be. The silencing relation can also be interpreted as a causal thesis,although, once again, it seems questionable to force the expression of a conflictregarding cultural hegemony directly into the language of legal causality. Thecogency of this argument can be assessed only after greater internal differentia-tion than it has received so far. I will return to this topic below (III), basing myargument on the distinction between free speech and the value of free speech.

To these four theses calling for pornography to be restricted – as a) involvingsexual abuse in the production process, b) being a cause of sexual abuse duringand on account of being consumed, c) constituting sexual harassment, and d)gagging women attempting to achieve ethical and political autonomy – is opposedas the most important counter-argument, in a certain sense asymmetrically, theright to free speech. The asymmetry comes from the apparent exemption of freespeech, as a self-evident constitutional principle, from the need for justification.The following sections are therefore concerned with the grounds adduced by vari-ous conceptions of free speech in favor of protection and the implications of thesegrounds for the pornography problematic.

II. Pornography and Democracy

In the following I explore four democratic perspectives on free speech, beginningwith a marketplace model of democracy, which defends pornography more vigor-ously the more it is interpreted as political (Posner, Easterbrook). Then I move toa liberal-democratic model, according to which pornography deserves protectionas an expression of ethical autonomy (Dworkin). From there I investigate twomodels by authors advocating conceptions of “deliberative democracy,” in arepublican (Sunstein) and a pluralistic (Cohen) variant.

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1. Democracy as a Marketplace38

Traditional obscenity law, as we have seen, is based on an inconsistency in regardto an absolute, literal understanding of the First Amendment, which itself derivesfrom a judgment of obscene speech as without social value. At the same time, thehighest protections are enjoyed by political speech, resulting primarily if notexclusively from its social value. The particular danger that the state representsfor political speech feeds an intense mistrust of an interventionist legislature andgovernment, and calls for the strict protection of speech against discriminatorystandpoint-based regulation. What happens when this traditional paradigm isforced to deal with pornography emerges clearly from the decision in the case ofThe American Booksellers Association v. Hudnut, where an ordinance that drewon the definition of pornography by MacKinnon and others as quoted above wasdeclared unconstitutional.39 The basis of the decision here was not obscenity law,with the justices ruling that pornography, having next to no social value, does notdeserve first amendment protection. The decision was based instead on theconsiderable value of pornography as a social statement, if pornography signifies,implies, or advocates the oppression of women. The judges of the Seventh DistrictCourt of Appeals, in full conformity with established constitutional jurisprudence,decided that precisely such a political interpretation spoke in favor of, rather thanagainst, granting protection to pornography.40 Judge Posner, who took part in thedecision, wrote: “It is true that [pornographic] works ... often express an ideol-ogy of patriarchy and misogyny…, but that is no ground for suppression. Ratherthe contrary, since ideological representations are at the center of the expressionthat the First Amendment protects.” This move is of grave consequence, becausegranting pornography the status of political speech lifts it into the area protectedby free speech rights, analogous to the speech of neo-Nazis and members of theKu Klux Klan. If pornography inevitably has a political dimension from which itis impossible to abstract, then, in Posner’s words, “the vilest pornographic trashis protected.”42 From the perspective of this reasoning, the feminist strategyappears self-refuting. The more dramatic and politically meaningful the state-ments and effects attributed to pornography, the more it is seen as being central tosocial reproduction and the more pointless it becomes to argue for restrictions tobe put on it. If pornography is not simply a matter of offensive fringe expression,but instead propaganda so effective that it can dominate entire societies, it onlymakes its worthiness for protection the more apparent. Even if the legal reason-ing is generally regarded as perfectly justified in constitutional terms,43 it isnecessary to ask whether such protection is appropriate.

We have seen that a particular interpretation of pornography culminates in thisparadox, that “the very features of pornography that recommend it as a target ofregulation also require its classification as not just expression, but politicallycharged expression.”44 Pornography makes political statements in that it includes

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expressions about “women’s natures and thus…women’s appropriate relations andtreatment in society.”45 Pornography could be understood, in other words, as if itwere arguing that women should take a subordinate role or that women exist onlyto perform sexual services for men.46 If it does have a political contribution to make,it is the promotion of unequal gender relations. This interpretation seems neitheraltogether implausible nor fully compelling. For one thing, it seems problematic totie pornography down to making a specific canonical statement, which could bereasonably doubted. And the court should be expressing itself much more skepti-cally or pluralistically in regard to such a controversial interpretation. More impor-tant is the following consideration. The problematic and paradoxical appearanceoriginates because the interpretation being used is one which neither producers norconsumers of pornography – for whatever reasons – would use to argue whypornography, in their view, deserves protection. In a kind of inverted paternalism,pornographic expression is granted constitutional protection under a descriptionthat those making or consuming it do not seek to identify with in the public sphere.This peculiarity denotes a critical failure of the analogy to other forms of politicalspeech, even other “hard cases” such as racist and antisemitic expression, and itsignals a certain weakness in the “political” defense of pornography. The courtintended to defend pornography, even stipulating its interpretation as discriminatoryspeech. Lost sight of in the process is the fact that it is probably only in this inter-pretation that pornography could be clearly classified as political speech, thusunambiguously deserving of First Amendment protection. (Imagine a discussion inwhich obscene expression is denied constitutional protection because it fails toexpress hostility to women clearly enough.)

The Booksellers decision also ignores a second difficulty, this one concerningthe form of political speech. Pornography does not even seem to operate on thelevel of an exchange involving arguments, but – still considering the conditionslaid down in Booksellers – on the level of the reinforcement and confirmation ofideological prejudices.47 Pornographic expression does not usually start a conver-sation or exchange of arguments about its “claims,”, nor does it usually figure asa reply in such conversations. Pornographic expression does not as rule even situ-ate itself in terms of contributing to an ongoing public discussion of an issue.From this angle, pornographic speech seems even less worthy of protection thanits notorious analog, racist propaganda, which as a rule does engage, if strategi-cally and superficially, in public exchanges of opinion.

Finally, the question arises as to the soundness of the points put forward insupport of the protection of pornography drawn from its political interpretation,the interpretation that it amounts to propaganda for inequality. Why is it that “thevilest ideological trash” should – in particular – not be restricted? Free speechguarantees, in the democracy as a marketplace model on which the justices reliedin Booksellers, are justified in primarily instrumental terms.48 In this picture, noteven ideological “trash” can be forbidden, because the best political outcomesresult as if of themselves from the workings of the invisible rational mechanism

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that operates inside an unregulated market of opinions and ideologies. In thewords of one of its critics, the marketplace model claims that “politics is morelikely to discover truth and eliminate error, or to produce good rather than badpolicies, if political discussion is free and uninhibited.”49 Governments, incontrast, tend to favor the status quo over the free and unprejudiced search for thetruth, and therefore have an interest in setting limits on the spectrum of challengesraised on the ideological front. It thus must be made as difficult as possible for aself-interested government, “the great censor and director of which thoughts aregood for us,”50 to interfere in the free play of forces and distort them.

This reasoning, however, seems more to weaken than fortify the argument inthe Booksellers decision. First of all, it is necessary to define more precisely thepotentially rationalizing contribution pornography is supposed to be in a positionto make. Given the interpretation put forward, this is far from obvious. Not evenfrom a fallibilist point of view which stresses the necessity of opposition to main-stream political convictions can pornography merit protection as an ideologydirected against women. While few people will claim to know “the truth” in polit-ical matters, political fallibilism is unpersuasive if it rules out that there is such athing as a single historically and argumentatively falsified idea. The possibilitythat contemporary norms are wrong does not mean that just anything must beregarded as possibly true.

It remains only to assess the conjecture that the self-interested state would bemotivated to regulate pornography to immunize itself against criticism. That isalso rather unlikely. The means by which the state is held subject to publicscrutiny and criticism would be circumscribed only a little, while the danger ofgovernment corruption would not rise significantly. The underlying interpretationof free speech – informed by the popular mistrust of government representativeswho censored political speech during the wars and the McCarthy period – is notplausible in the case of pornography.51 If what is at stake with protected speechis a democratic process of arriving at political truth, the contribution made bypornography should not be overestimated.

2. Democracy as a Community of Ethically Independent Individuals

Ronald Dworkin’s position, also liberal and in agreement with the Booksellersdecision, was originally developed in opposition to the obscenity paradigm andto attempts to enforce a common morality. Dworkin’s position is more radicalthan that of Posner and mainstream judicial practice, because it argues both forthe freedom of obscenity and for the freedom of pornography in the sense meantby MacKinnon. This judgment is independent of whether such speech is held tobe valuable or not to society, and it is independent of whether the speech makesa political contribution. To Dworkin, unlike the authors of Booksellers, it is clearthat a convincing defense of pornography cannot be based solely on the contri-bution it makes to political discourse.52 Dworkin defends almost completely

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unrestricted speech rights as a form of negative freedom. He celebrates in theBooksellers decision the “true political choice,” to forego all interference withfree speech, even if doing so demands “sacrifice.”53 This “political choice” issupposed to reflect a certain “national way of life,” according to Dworkin, but, hemaintains less convincingly, it can at the same time be regarded as “the core ofthe choice modern democracies have made.”54 Even so, it is not immediatelyobvious what sort of arguments will be needed to support this negative freedom.

According to Dworkin, speech does not have to serve political goals to meritprotection. Not only the aspect of free speech that is “instrumental” in a function-ing democracy, but also its “constitutive” aspect and thus its “intrinsic value” shouldbe protected.55 Nevertheless, Dworkin stresses that the idea of free speech and anormative understanding of democracy are in harmony, and in more recent writings,he develops a defense of free speech as a recognition of citizens’ ethical subjectiv-ity, independence, and ability to exercise influence.56 Dworkin describes democracyas a context of accountability and obligation, in which responsibility for democrat-ically made decisions is ascribed to the individual members.57 He seems to besuggesting here that for the obligating effect of democratically generated law tohold in cases of disagreement, two things are necessary. The first is that no one wasor will be denied the opportunity to exercise influence in favor of revising such deci-sions. A democratic community “forbids a behavior it has condemned as harmful,but leaves the agent free to think and to assert that the decision was wrong andshould be reversed.”58 The second condition is that the democratic state not violatea principle of moral or ethical independence. This independence or autonomyshould not only be respected in matters of conscience and belief. It may also begranted to certain actions undertaken by the individual. Dworkin speaks in thisconnection of “a right to participate in forming the moral environment.”59 A rightof that nature is manifest in free speech more than in any other area and must notbe encroached upon or restricted because others are offended, repulsed, or insultedwhen it is exercised.

The first condition is uncontroversial. Democratic norms and decisions arelegitimate only when all citizens have a fair chance to contribute to their forma-tion or take part in changing them, and the exclusion of certain positions andstatements can be interpreted to mean that this possibility did not exist. Thisprinciple offers one explanation for why, from a democratic point of view,content- and standpoint-based limitations are suspect: because speech can bedirected at the enforceable norms under which the speaker is living. It neverthe-less remains questionable whether such a principle, on a less than forced inter-pretation, is applicable to pornographic speech. For that, it would be necessaryto construe pornography as offering proposals or critical commentary, or as anexpression of disagreement in regard to collective decisions and laws, thusunderstanding it as political participation in the narrow sense, in establishing law.It is difficult to identify the targets of such a critique, especially in liberal demo-cratic states. Clear cases in point would be the imposition of legal restrictions on

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sexual freedom; for example, the argument would justify legalizing homosexualpornography in systems where homosexuality is subject to legal prosecution. Thecorrelation in question could help explain the remarkable fact that the acceptanceof sexual freedom and the acceptance of pornography are increasingly divergingin the public perception: while nonstandard sexual preferences are seeminglybecoming less and less objectionable, pronography is becoming more so.Doubtless, many instances of pornographic expression can be understood as acritique of widespread conceptions of sex, ethics, and lifestyle, of a conventionalor repressive sexual ethic, or of the hypocritical public pretense of one. As targetsof criticism, however, these points, while justified, are not relevant in to ourpresent purposes because it is not the legitimacy of ethical mores that is at issue,but the legitimacy of laws. To the degree that the liberal state has withdrawn fromthe regulation of sex between consenting adults, this “democratic” argument infavor of pornographic freedom loses plausibility.

The second condition may be more promising. The argument about respectingthe individual’s moral and ethical independence fits such hard cases as pornogra-phers, creationists, racists, and antisemites.60 It postulates the minimal conditionsof respect for ethical diversity that must be fulfilled by a democratic state. Onlyon first glance is it surprising that Dworkin appeals to democratic ideals in thiscontext, for the democratic principle entails the important proviso that the contri-butions made to democratic decisions must come from free individuals, who,therefore, must be isolated from the collective influence of a “monolithic” moral-ity.61 MacKinnon’s proposal does indeed seem to violate this condition, for herreasoning is based on, among other things, the preferability of a sexual ethic thatis not embedded in or dominated by pornography.62 Alongside normative isola-tion, however, autonomy and independence for Dworkin also mean that individu-als are outfitted with the rights and opportunities necessary for them to exercisean active influence on their “moral environment.” Just as the freedom of sexualorientation63 would be radically incomplete as personal freedom of thought orconscience if these could not also be expressed as action, ethically autonomouspeople must be free to live their notions of a good life outwardly as well. Theirinfluence, according to Dworkin, can be limited in certain contexts, but it may notbe limited in principle on the basis of content. The exclusion of “views” wouldmean excluding individual persons by defining “some people as too corrupt oroffensive or radical to join in the informal moral life of the nation.”64

It may appear cynical at first to base a prima facie presumption against placingrestrictions on pornographic speech on arguments against the exclusion and disre-gard of individuals. It seems to offer support to a privileged group (the billion-dollar pornography industrial complex which MacKinnon likes to point out) withreasoning designed for social outsiders. Dworkin probably escapes suspicions ofideological slant. But, in the context of pornography, the characteristics particularto corporate speech must certainly be taken into account, although they can behandled on a less abstract level – by such traditional means as employment, tax,

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and anti-trust law – and ameliorated through self-organization.65 Dworkin’sthinking is nonetheless illuminating, however: the basis for protecting speech liesnot in the possible rationality of what might be said, but in the status of thespeaker as a citizen.66

What are we to understand as to the breadth of the pornographic free speechrights resulting from this analysis? It is compatible with Dworkin’s model torestrict the settings in which moral autonomy has its effect on the environment;that is, regulations regarding place, extent, time, and type of influence over themoral environment might very well be allowed. If we assume, however, asDworkin does, that excluding a certain expressive content is simultaneouslyexcluding a person, then there is much to be said in favor of the demand thatrestrictions be enforced only if they are neutral in terms of standpoint andcontent, thus diminishing not the range of the spectrum, but if necessary the“amount” of expression. This makes it seem less problematic to restrict pornog-raphy by making it more expensive and quantitatively less accessible, than toestablish certain differentiations within the spectrum of pornographic expres-sion. Dworkin’s approach is therefore unable in principle to reflect the intuitivedistinction that exists, for example, between aggressive, violent pornography andnonviolent material, even if the latter involves elements of “display” or objecti-fication which cause it to fall under MacKinnon’s definition of pornography. Forthe two approaches discussed in what follows, this failing represents an analyticweakness in Dworkin’s proposal, which ironically corresponds to MacKinnon’sexcessively broad definition.

3. Republicanism

In Cass Sunstein’s view, current constitutional interpretation protects speech thatdoes not deserve protection. “It safeguards speech that has little or no connectionwith democratic aspirations and that produces serious harm. Invoking the rhetoricof absolutism, it refuses to engage in sensible and salutary balancing. I think thatthis is a mistake.”67 One of the examples Sunstein uses to substantiate his thesisis pornographic speech. The contribution of Sunstein’s model to the pornographyproblematic is its modernization of obscenity law, thereby making constitutionaljurisprudence more responsive to the MacKinnon program.

The inspiration underlying Sunstein’s systematic counterproposal, a “NewDeal for Speech,” is the idea of democratic equality as understood in a variant ofrepublicanism. The justification of free speech in this Madisonian tradition is tiedto a particular understanding of the practice of democracy which makes equalaccess to the “popular channels of communication”68 a precondition of politicalequality among citizens and which operates in a deliberative-argumentativemode. Sunstein does not dispute that pornography is a form of speech. In the core-periphery model of free speech that underlies his reconstruction of constitutionallaw, only political speech enjoys the nearly unqualified protection of the First

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Amendment. Thus, it seems difficult to avoid the Booksellers interpretation ofpornography as analogous to political speech, which implies an absolute merit ofprotection. Sunstein’s strategy is thus to depoliticize the pornography problem-atic, shifting to the narrower issue of preventing “tangible real-world harms.”

For that purpose, political speech, deserving of the highest degree of protec-tion, must be defined more narrowly than it is, for example, by Posner. Not allrepresentation manifesting ideological content is to be understood as politicalspeech, but only that which “is intended and received as a contribution to politi-cal deliberation about an issue.”69 The issue need not be a particular law orgovernmental decision, so more informal social and ethical circumstances couldalso become the object of “political speech.” Still, not all expressions with polit-ical content fall under this definition: “The question is whether the speech isintended and received as a contribution to political deliberation, not whether it haspolitical effects or sources. Thus, for example, there is a distinction between amisogynist tract, which is entitled to full protection, and many pornographicmovies, which are not, but which are in essence masturbatory aids.”70 Thisdistinction is supposed to invalidate the central argument of the decision inBooksellers and at the same time refute the charge of standpoint-based regulation.To return once again to the ever-recurrent analogy: in contrast to many porno-graphic films (some of which may also have ideological content), a “misogynisttract,” like racist or neo-Nazi speech, is protected as a political contribution.

With its emphasis on guaranteeing especially strict protection for politicalspeech – and not only that, but for those instances of political speech in whichintention and reception as political in fact overlap – Sunstein’s view clearly raisesthe concern that art, science, and literature do not receive adequate consideration.These genres lie farther toward the periphery of republican discourse. They doparticipate in constitutional protection, according to Sunstein, insofar as they canbe understood as “social commentary.”71 In their function as commentary on orcontributions to common concerns, as auxiliary political genres, they are there-fore understood as possessing great social value, while socially less valuablespeech enjoys less or no protection. Sunstein is thus able to maintain an affirma-tive position toward obscenity law, exchanging its damage criterion (“offensive-ness”) with the criterion for pornography (“harm to women”).

Sunstein, with his qualified approval of the legal regulation of pornography, isless concerned with its political dimension than with the immediate harmssuffered by women in the pornography production process and harms that, in hisestimation, come from men who are stimulated by pornography. Here he is rely-ing for critical support on the disputed causal relationship between pornographyand the perpetration of sexual violence.72 He does make some important changesin MacKinnon’s proposal, however. First, he bases his definition of pornographyon the association between sex and violence, rather than on the subordination ofwomen, as MacKinnon does. Pornography then becomes the representation of sexalong with rape, compulsion, and injury.73 Sunstein is thus able to show that the

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categories of speech to be regulated are no longer standpoint- but content-based,which makes them less alarming constitutionally, as well as making them muchmore narrow and less vague. Second, in order to refute the arguments of thoseopposed to content-based restrictions, Sunstein argues that texts should be toler-ated, even while pictures and films with “the same” content are regulated.77 Thisargument is based on the clear difference between the production process forpictures as opposed to texts. No one, as a rule, runs any danger of being harmedduring the production of a text. The result here is that not only “misogynist tracts”but also violent pornographic literature might be allowable, while steps could betaken against films and photographs to which the identical content could reason-ably be ascribed.75 The reference made here to the “translatability” of onemedium into another is not altogether implausible. In particular, Dworkin’s argu-ment discussed above, that the exclusion of expression implies the exclusion ofpersons, loses some of its weight if alternative expressive forms are available forthe same content. Not all content-based regulation of speech is rendered harmlessby the possibility of alternative media being available to convey the same content– compulsory “translations” can turn out to be extremely repressive and elitist.Yet, this consideration could perhaps help clarify arguments in favor of protectionfor pornographic expression. What needs to be clarified is why defenders ofpornography would not in all likelihood regard its forced translation from pictureto text, for example, as an admissible regulation of free speech. This could beunderstood to mean that what is regarded as worthy of protection is not so muchthe content or statement being made as the expression itself, suggesting at thesame time that pornography might be easier to defend as expressive behavior thanas the conveyance of statements and views – a distinction that the modelsdiscussed so far do not reflect.

What remains unsatisfactory in Sunstein’s proposal is the authoritarian identi-fication of valuable speech with socially valuable speech and, in particular, itsnarrow characterization as “social commentary.” This move not only leads tothankless debates about social value (“Is it social commentary or is it pornogra-phy?”). Of more moment is that speech with sexual content that cannot beconstrued to be social commentary immediately loses its First Amendmentprotection. The independent, noninstrumental value that such speech can have isrecognized as little in Sunstein’s model as it is in MacKinnon’s critique. AlthoughSunstein’s model is not especially restrictive, this remains a serious defect.

4. Reasonable Pluralism

Like Sunstein, who understands his “Madisonian republicanism” as a variant ofdeliberative democracy, the theory of expressive freedom developed by JoshuaCohen also originates within a model of deliberative democracy. In such a model,“free expression is required for determining what advances the common good,because what is good is fixed by public deliberation, and not prior to it.”76 This

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conception is likewise tailored especially for expression that is intended as a polit-ical contribution. The epistemological or argumentative contribution that pornog-raphy could make is dubious, as we have seen. But Cohen insists that adeliberative conception of nonpolitical speech not be regarded as second rank,because it is involved in “the formation of preferences and convictions.”77

Nonpolitical speech is thus in a position to contribute to the formation of inter-ests, goals, and ideals. From this point of view, it is to be welcomed when a plural-ity of ethical systems are publicly represented because it facilitates the revision ofunreflected preferences and conceptions of the good life.

Nevertheless, the contribution free speech is supposed to make to the “commongood” remains ambiguous and in need of clarification. Cohen’s proposal is not asconcerned with the common good in the sense of collective democratic self-real-ization, as with a democratic society that is compatible with a reasonable plural-ism of conceptions of the good. Expression, therefore, does not begin meritingprotection only when it contributes to a “common” project. Pornographic state-ments and projects are often outsider models which are not (even according tothose who make them) proposed as realistic candidates for a general conceptionof the good life, but as intended for individuals and their individual welfare withina bounded subculture, as outlines or elements of a thoroughly particular, nonpros-elytizing ethic. Innovative and experimental outlines of this sort appear particu-larly vulnerable to free speech restrictions, to the advantage of widespread andredundant outlines of habituating and normalizing effects. If democratic societiesmistrust the most widely represented, seemingly obvious, but still stereotypedversions of the common good and the good life for the individual, then they willwant to have the broadest possible knowledge of alternatives.

Nevertheless, the concentration on democratic deliberation and informationabout other ethical systems seems to register important forms of statements aboutsexuality or expressions of sexuality only in terms of their instrumental aspects.In a more recent attempt to systematically clarify various free speech problems,Cohen therefore gives up his exclusive reliance on the interest in deliberation andinformation. A fundamental “expressive interest” now bears a third of the justifi-cation for protecting free expression.78 In contrast to the interests in deliberationand information, the expressive interest justifies guaranteeing protection tononpolitical speech in terms that are not merely instrumental while at the sametime supporting the freedom of expressive forms that in no way promote thecommon project, even those that are not even intended as communication. Nottaking this fundamental expressive interest into account is sufficient reason forCohen to reject MacKinnon’s proposal.79

For expression of and about sexuality, whether pornographic in MacKinnon’ssense or not, the justification as expressive behavior seems indeed the most appro-priate: it poses no implausible analogy with political hate speech as in the case ofBooksellers, produces roughly the protection of Dworkin’s argument about moralautonomy, and, finally, seems more likely to be able to do justice to the constitutive

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value of free speech than Sunstein’s functionalizing conception. Nevertheless,Cohen distinguishes his position from a “maximalist” interpretation of freespeech,80 because in his view that position fails to explain why, in certain cases(slander, for example, or hate speech), we find it acceptable to regulate speechbecause of the severe consequences speech can have – that is, on the basis of acost-justification. This circumstance has implications for the freedom of sexualexpression as well.

If speech merits protection because of its connection to the three fundamentalinterests, then statements without any such connection are, by hypothesis, unpro-tected. Correspondingly, Cohen understands the definition of obscenity as tanta-mount to the claim that no connection to the fundamental interests exists: “[T]hebasis for treating obscenity as a low value is that it contributes little to the funda-mental interests.”81 Based on this identification, which deprives obscene speechof its constitutional protection in quite traditional terms and without regard forthe consequences, the regulation of subcategories of obscene speech can be justi-fied by the harms that such speech occasions. One such subcategory is “porno-graphic obscenity,” which, for Cohen as for Sunstein, is characterized by the useof force against women.82

The difficulty involved in this proposal has less to do with the content of theregulation than with identifying the classes of obscene expression. By introduc-ing an expressive interest as part of the ratio of free speech, Cohen diminishes theplausibility of attempts to identify expression that does not participate in thisinterest and deny it protection. It appears much more to be the case that obscen-ity law, with its distinction between two classes of speech as socially valuable andsocially valueless, is incompatible with the view that speech owes its specialworthiness of protection to the expressive interest, rather than social function.Despite these two returns to obscenity law, in neither Sunstein nor Cohen has thedifficult task of drawing a nonrepressive distinction between valuable and value-less speech received due consideration. Aside from the more or less clear cases ofart and literature, it is completely uncertain which genres of expression exist inclosest contact with the expressive interest. It is to be expected that prejudice andmajoritarian repression will enter undeclared precisely in the decision as towhether speech is to be classified “high” or “low” in value.

III. Pornography and Equal Free Speech

Free speech is defensible only as equal free speech. However, in the brief intro-duction of the silencing argument above, it has already been conjectured that free-dom of speech can have asymmetrical results in terms of equality. In the followingsection, I attempt to evaluate the argument that, in regard to pornography underliberal conditions, the free speech of one can be incompatible with the free speechof another. I will also discuss the apparently paradoxical thesis that a system of freespeech can profit from the imposition of content-based restrictions of free speech.

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1. Equal Distribution of Speech

For Catharine MacKinnon, the pornography debate can also be staged as a battlebetween two conflicting constitutional values, between the competing demands offreedom and equality.83 By equality she means not only formal equality before thelaw, but the active, interventionist pursuit of “material” or “substantial” equality.This correction can be read in two ways. On the one hand, equality can signify thedistribution of speech-shares. Speech in this view is a commodity, perhaps even ascarce one.84 In terms of distribution, it is a zero-sum game, which implies that ifvoices are to be amplified in one area, they must be quieted elsewhere.MacKinnon speaks of how much speech a person “has,”85 and she sees the threatto free speech – as the equal distribution of speech – as coming more from theunequal distribution of wealth, power, and influence among citizens and corpora-tions in the private sector than from state interference.86 Censorship is thus notexpected to come primarily from laws, but from repression by private positions ofpower that are responsible for the distribution of actual speech shares.87 Such anunderstanding of equality in terms of commodities or power seems to mirror thetraditional assimilation of free speech to a property right,88 identifying the exer-cise of free speech with the assertion of power and influence. In the attempt tomove gradually toward equality, imposing restrictions on the privileged wouldseem every bit as suitable a strategy as providing support to the underprivileged.This view, on the one hand, underestimates the extent to which the negativeeffects of free speech can be resisted, not only by putting a gag on dysfunctionalspeech, but also with “more speech.” On the other, the negative and expressivecharacter of the right in question is lost altogether. We saw in the discussion ofDworkin that democracy entails a presumption against content-based restrictionsof free speech. MacKinnon no more attends to this concern than she representsthe interests associated with expressive action (Cohen). From this angle, the aimof MacKinnon’s work – to show that the regulation of pornography is not so mucha limitation as an expansion of general free speech – must be regarded as unful-filled. The intended redistribution of speech resources is more reminiscent of theregulation of the speech market by the traditional authoritarian means of thewelfare state. Although this position exposes the false naturalness of the existingrelations of speech, it remains wed to a distribution paradigm and betrays the typi-cal ambivalence of welfare-state approaches.

The interpretation of free speech in terms of equality of resources is not theonly way to read the interventionist promotion of equal free speech. The compet-ing revision of the model of equal negative freedom can be understood as estab-lishing the enabling conditions for making use of free speech.

2. The Fair Value of Free Speech

To avoid confusion between viewing free speech as a commodity or power, on the

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one hand, and enabling the freedom of speech to be exercised, on the other, itmakes sense to follow Rawls in his understanding of the latter in terms of thevalue of a freedom. Rawls distinguishes between freedom in the negative sense ofnot being interfered with by the state or other people, and what can be done withthis freedom according to an individual’s social position and resources. The valueboth of private and political freedoms is indeed determined by the opportunity tomake effective use of them. At least with political freedoms, it seems undisputed,however, that their fair value can only be equal value for all citizens.89 Thisexplains why the silencing argument focuses on how political, not private, auton-omy is being withheld.

The fair value of free speech might consist in public fora being accessible andno one being excluded from their use. In earlier times, this condition applied topublic squares, today, more likely to the mass media and communicationsnetworks. This is not the meaning being foregrounded now, however. In a some-what extended sense, the fair value of free speech has more to do with “the like-lihood that I will speak or the likelihood that others will be moved by what Isay.”90 An important distinction is already becoming evident here: the fair valueof free speech can either be assessed in reference to the speaker or to those towhom the speech is addressed. The feminist argument that pornography is capa-ble of silencing women applies to both dimensions and can be understood as thethesis that the fair value of free speech is not available to women.

The multitude of questions prompted by the concept of silencing has hardlybeen discussed in detail so far, let alone answered. What silencing is seems to beposited in advance for later invocation. However, the fact that women, with theircritique of pornography, have gained a hearing throughout society must not betaken simply to mean that the silencing argument has been performativelyrefuted.91 The three most important questions seem to be: In what does the condi-tion of “speechlessness” consist? Does the alleged connection between pornogra-phy and speechlessness actually exist? Finally, are content-based restrictionsallowable and suitable as remedies?

It seems to make sense, first of all, to differentiate between a speaker- andaddressee-oriented understanding of silencing. A speaker-oriented understandingcould suppose – putting it entirely schematically – that women do not speakbecause they have no language. Thus, MacKinnon says, “we have no idea whatwomen as women would have to say.”92 The reason for this, as Richard Rorty, forone, identifies it, is that “‘a woman’ is not yet the name of a way of beinghuman.”93 This perspective raises against the involuntary and alien description ofwomen by pornography the challenge of an authentic female self-conception.Feminist positions, such as those taken by MacKinnon, Rorty, or Cornell, seem inthis context to alternate between two very different goals. On the one hand is theliberation of women’s self-images from and protection against the pornographicvocabulary or the “masculine imaginary.” On the other is the creation of a singu-lar and self-sufficient vocabulary in support of an identity for women that has to

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develop independently of all previous opportunities for self-description, sincethese are contaminated by association with pornographic descriptions. The condi-tions for the success of these two projects are very different. The latter projectseems to infer from the boundedness or boundability of a group according tosocial, cultural, or natural characteristics that only an authentic and independentnew language would be able to express previously oppressed dimensions of iden-tity – thus confusing semantic autonomy with semantic autarky. Likewise ignoredby this project is that, in functionally differentiated societies, while undergoingidentity formation, concessions to the pornographic vocabulary are not unavoid-able. Still, and Cornell makes this point, the “white heterosexual imaginary”continues to monopolize the representation and interpretation of sex and lust inthe public sphere. It could be that its territorial limitation, at the least, is a condi-tion for other alternatives to unfold.94

An addressee-oriented understanding of the silencing argument goes approxi-mately as follows. Because women are the objects of pornography, what theyhave to say is given less respect, consideration, and attention – allotted less cred-ibility and less importance – than statements made by men. The intended publicmay turn away from messages, claims, narratives, arguments, needs, etc., whichare brought up by groups and persons described in a degrading way. The “fairchance to command the attention of an audience” is obstructed in that perceptionsare produced according to which there are “human types unworthy of being heardor credited.”95

Even granting that this last quotation hardly describes the typical perception ofwomen in modern democracies, it still seems reasonable to assume that thedistorted or degrading representation of groups can be said to reduce the value ofthe free speech of members of these groups, at the very least when the represen-tation is a dominant one in society. An indication of this comes from the notori-ous credibility problems which women who have been raped confront in court.Even Ronald Dworkin concedes the prudence of assuming that such effectsexist.96 Dworkin’s counterargument, however, is that the perspective of the personto whom the speech is addressed is, strictly speaking, irrelevant to free speechconsiderations. The right to speak implies no right to be heard and no “right thatothers grasp and respect what one means.”97 This is to the point at least insofar asit describes the private obligations of citizens toward each other: corresponding tothe right to free speech is the right not to listen to something. As private persons,citizens have the right to withdraw from communication with each other at anytime.98 Nevertheless, when political fairness is at stake, such a casual treatment isnot possible. This is easily illustrated, for example, in the right to have officialstate business in administration or jurisdiction conducted in one’s nativelanguage, which is recognized in numerous polylingual countries. Here a right tospeech is coupled with the speaker’s right to have what is said understood. Thefair value of chances to participate likewise hinges on arguments and interven-tions receiving an equal hearing. The question that remains to be raised, then, is

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whether the “pornographizing” of women causes them to lose out in the politicalsphere and in political institutions by having their demands ignored or subjectedto an impoverished or false understanding. This harm could conceivably be muchmore severe than undisputed stereotyping (e.g., the proverbial housewife’s role inthe soap operas – which, by the way, no longer applies to soap opera reality either)of women’s interests being misrepresented and misjudged.99 This argument, ifapplicable to pornography, delivers a strong justification for imposing legalrestrictions on pornography, even restrictions that are standpoint-based.

Nevertheless, proving the precise correlations between certain types of contentand silencing effects is difficult. It is unclear, for example, whether the reinforce-ment of stereotypes and significant degradation cannot be more easily be ascribedto the great mass of “legitimate” obscene expression than to less common violentpornography disdained by many men in any case. When it is not clear which aliendescriptions are the cause of the effects, it is difficult to frame regulations that arenot unacceptably broad. If the silencing argument is sound, finally it must beapplicable to comparably effective representation. In particular, the damagingeffect of pornography must be set in relation to racist propaganda – especially ofthe pseudoscientific sort often found at the center of free speech considerations.Racist speech might be much more effective in robbing its victims of opportuni-ties to speak because its attack on civic competence is much more direct. It isquestionable whether pornographic descriptions of women cause anything likethe sort of damage to their political credibility that racist propaganda causes to thecredibility of its victims (not to mention other consequences). Despite its plausi-ble normative requirements, the silencing argument thus raises more questions atpresent than it answers. At all events, the issues have not as yet been clarified insuch a way as to make the idea of broadening free speech rights for some byrestricting them for others seem any less paradoxical than before.

(Translated by Don Reneau)

NOTES

* For important critiques, my thanks to Regina Kreide, Angelika Krebs, Klaus Günther, OliverGerstenberg, to Kulturwissenschaftliches Institut Essen, where I had a chance to discuss an earlierversion of this paper, and Martin Löw-Beer, who published the German version in Babylon 16–17(1996).

1. Representative of this discussion is Ronald Dworkin, “Do We Have a Right toPornography?” in A Matter of Principle (Oxford, 1992), esp. 354.

2. See Catharine MacKinnon, Only Words (London, 1994), 55.3. See Ronald Dworkin, “Women and Pornography,” New York Review of Books (21 October

1993): 36.4. MacKinnon, Only Words, 75.5. Constitution of the United States, Amendments, Art. 1. In constitutional law, the prohibition

applies beyond Congress to the laws and regulations passed by states and localities.6. Cass Sunstein, Democracy and the Problem of Free Speech (New York, 1993), 10, 21ff, as

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well as Joshua Cohen, “Freedom of Expression,” Philosophy and Public Affairs (1993): 258, bothwriting in reference to the case of Miller v. California (413 U.S. 15, 1973). To the three criterianamed above can be added a fourth: that the expression contains sexual behavior that is prohibitedby a state.

7. MacKinnon, Only Words, 87 n. 32.8. For the details and wording of the ordinance, MacKinnon, Feminism Unmodified: Discourses

on Life and Law (Cambridge, MA, 1987), 262, n. 1; 247, n. 1.9. See MacKinnon, Only Words, 16.

10. “In this definition, the use of ‘men, children, or transexuals in the place of women’ is alsopornography.” (MacKinnon, Only Words, 87 n. 32). That this de-differentiation is problematic isobvious, but cannot be adequately discussed here. An understanding of pornography based onheterosexuality cannot simply be projected onto homosexual representation. See Drucilla Cornell,The Imaginary Domain (Nw York and London, 1995), 107ff; Sunstein, Democracy and theProblem of Free Speech, 226.

11. See, for example, MacKinnon, Only Words, 66.12. See ibid., 62f, and Cohen, “Freedom of Expression,” 242.13. See the decision of the US Seventh Circuit Court in American Booksellers v. Hudnut (771

F. 2d 323, 7th Cir. 1985, reporter Frank Easterbrook) and the comments by Frank Michelman,“Conceptions of Democracy in American Constitutional Argument: The Case of PornographyRegulation,” Tennessee Law Review 56 (1989): 302ff; Richard Posner, Sex and Reason(Cambridge, MA, 1990), 360ff; Ronald Dworkin, “Two Concepts of Liberty,” in E. Ullman-Margalit and A. Margalit, eds., Isaiah Berlin: A Celebration (London, 1991), 104ff; andMacKinnon, Only Words, 65–8.

14. For a comprehensive collection of such examples, see Sunstein, Democracy and theProblem of Free Speech, esp. 11ff and 167ff.

15. Standpoint-based free speech restrictions, in the aftermath of the discussion about “campus hatespeech,” are not altogether lacking in defenders. It is precisely the asymmetrical allocation of rights thatThomas Grey, who drafted the speech code at Stanford University, describes as progress: “In thoseunhappy moments when the contemporary campus becomes a multi-cultural armed camp, the Stanfordregulations would prevent me from firing my most powerful verbal assault weapons across racial,sexual, or sexual preference lines. By contrast, people of color, women, and gays and lesbians can useall the words they have at their disposal against me”; quoted from Charles Fried, “The New FirstAmendment Jurisprudence: A Threat to Liberty,” in G.R. Stone, R.A. Epstein, and C.R. Sunstein, eds.,The Bill of Rights in the Modern State (Chicago, 1992), 247.

16. Sunstein, Democracy and the Problem of Free Speech, 213.17. Cornell, Imaginary Domain, 147.18. See, for example, MacKinnon, Only Words, 24.19. Ibid., 13.20. Ibid., 25, 68.21. Ibid., 12. 22. See Dworkin, “Women and Pornography,” 38; Posner, Sex and Reason, 386 ff; Cornell,

Imaginary Domain, 140.23. See Gertrud Koch, “Die neue Sittlichkeit. Zur gegenwärten Debatte um die Pornographie,”

in B. Classen, ed., Pornost. Triebkultur und Gewinn (Munich, 1988).24. MacKinnon, Only Words, 76f.

25. MacKinnon, Only Words, 18.26. See Duncan Kennedy, Sexy Dressing, etc. (Cambridge, MA, 1993).27. See Dworkin, “Women and Pornography,” as well as the criteria of the “Stanford behavior

code,” discussed in Cohen, “Freedom of Expression,” 208; and Sunstein, Democracy and theProblem of Free Speech, 203f.

28. MacKinnon, Only Words, ch. 2.29. Cornell, Imaginary Domain, 147.

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30. Ibid., 148.31. In this Cornell agrees with one of MacKinnon’s minimum demands: “at the very least,

pornography should never be imposed on a viewer who does not choose – then and there, withoutpressure of any kind – to be exposed to it.” Only Words, 77.

32. “[A] tort of domestic sexual harassment…would include…the creation of a hostile domes-tic environment through unwanted sexual advances, unwanted exposure to degrading sexual mate-rials, insults, or jokes, or both.” Kennedy, Sexy Dressing, 135.

33. Homosexuality and pornography are grouped together as forms of sexual freedom byThomas Nagel, Equality and Partiality (Oxford, 1991), 146 and Dworkin, “Do We Have a Right toPornography?” 364, among others. MacKinnon supports the association between pornography andracist and anti-Semitic hate talk; Only Words, 31–47.

34. For a crude example, see Andrea Dworkin, for whom pornography is the means by which“Dachau” is “brought into the bedroom and celebrated.” Pornographie. Männer beherrschenFrauen (Cologne, 1987), 86 (tr. D.R.).

35. MacKinnon, Only Words; Dworkin, “Women and Pornography.”36. On this argument, see MacKinnon, Feminism Unmodified, 155ff; as well as Michelman,

“Conceptions of Democracy”; Richard Rorty, “Feminism and Pragmatism,” Michigan QuarterlyReview 30, no. 2 (1991), and a psychoanalytic variant in Cornell, Imaginary Domain, 158ff.

37. MacKinnon, Feminism Unmodified, 156.38. On this topos in American political thought I follow Sunstein, Democracy and the Problem

of Free Speech. Cf. chs. 1–4 for a juxtaposition of a Madisonian republican model and a model(attributed to J.S. Mill and O.W. Holmes) of democracy as a marketplace.

39. See note 13 above.40. See the reconstruction of Judge Easterbrook’s argumentation in Michelman, “Conceptions

of Democracy,” and Dworkin, “Two Concepts of Liberty.” On the following, see Posner, Sex andReason, 364ff.

41. Ibid., 381–2.42. Ibid.43. See Michelman, “Conceptions of Democracy,” 303; Dworkin, “Two Concepts of Liberty,”

104ff.44. Michelman, “Conceptions of Democracy,” 301.45. Ibid., 303.46. See Dworkin, “Two Concepts of Liberty,” 105; “Women and Pornography,” 36.47. Here I follow MacKinnon, Only Words, ch. 1.48. See Michelman, “Conceptions of Democracy,” 302f.49. Dworkin, “The Coming Battles,” 56.50. American Booksellers v. Hudnut, 330, quoted from Michelman, “Conceptions of

Democracy,” 301.51. See MacKinnon, Only Words, 27. Pornography did indeed go through an “heroic” phase, as

a weapon of materialist critique prior to the French Revolution; see Lynn Hunt, ed., Die Erfindungder Pornographie. Obszönität und die Ursprünge der Moderne (Frankfurt, 1994), 270. It presum-ably is no longer possible today to appeal plausibly to this function.

52. In “Do We Have a Right to Pornography?” Dworkin offers the view that other argumentsmust be found, aside from those concerning free speech and press rights, if it seems wrong toprohibit pornography (336). He turns in this spirit to a right to moral independence (350ff).

53. Dworkin, “Two Concepts of Liberty,” 109.54. Ibid., 107.55. Dworkin, “Do We Have a Right to Pornography?” 56. Dworkin’s thesis that speech that

serves no political end should be protected could be taken at first glance for an anti-democraticargument. According to an earlier view of Dworkin’s, there would then be no presumption in theidea of democracy in favor of free speech. Democracy—which in this phase Dworkin held to beequivalent to the given collective power of arbitrary self-determination exercised by the people—and the intrinsic value of free speech appeared in fact to come into frequent conflict. “The Forum

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of Principle,” in A Matter of Principle, 62. See also “Do We Have a Right to Pornogrpahy?”348f.

56. Dworkin, “Gleichheit, Demokratie und die Verfassung,” in Ulrich Preuß, ed., Der Begriffder Verfassung (Frankfurt, 1994), 196ff.

57. Ibid., 197.58. Ibid., 198 (tr. D.R.).59. Dworkin, “Women and Pornography,” 41.60. Ibid., 40f.61. Dworkin, “Gleichheit, Demokratie und die Verfassung,” 196.62. She recommends a nonalienated, nonobjectifying practice of sexuality, in which “sex

between people and things, human beings and pieces of paper, real men and unreal women, will bea turn-off.” Only Words, 77. This is clearly a non-neutral ethical suggestion, but is not central to herargument.

63. Dworkin, “Gleichheit, Demokratie und die Verfassung,” 198.64. Dworkin, “Women and Pornography,” 42.65. On the last point, see Cornell, Imaginary Domain, 51–61.66. A serious problem for this way of looking at the issue is that Dworkin models democratic

society on moral communities and that the high moral regard thus demanded comes from a too littledifferentiated view of which type of social recognition citizens owe to one another. This cannot beinvestigated further here, however.

67. Sunstein, Democracy and the Problem of Free Speech, xviii.68. Ibid., 40.69. Ibid., 130.70. Ibid., 154.71. Ibid., 152.72. Ibid., 217f.73. On the very similar German regulation, see Criminal Statute 184, III, commentary by E.

Dreher and H. Tröndle (Munich: 1986), 953, 35. I can only draw attention here to the importantdistinction between Sunstein’s preference for civil regulation (following MacKinnon) and the crim-inal regulation that takes place in the Federal Republic.

74. Sunstein, Democracy and the Problem of Free Speech, 218.75. The differentiation between pictures and texts is, of course, less persuasive in the case of the

alleged causal correlation between consumption and violence; Sunstein refers here to the greater“immediacy and vividness” of pictures. Ibid., 218.

76. Joshua Cohen, “Deliberation and Democratic Legitimacy,” in A. Hamlin and P. Petit, eds.,The Good Polity: A Normative Analysis of the State (Oxford: Oxford University Press, 1989), 29.

77. Ibid.78. Cohen, “Freedom of Expression,” 224–8.79. Ibid., 242; cf. 224. What remains unclear to this point is the extent to which the expressive

interest that Cohen proposes in the context of a theory of “reasonable pluralism” (223) is an inte-gral part of the conception of deliberative democracy itself or whether the degree to which democ-racy respects such an interest is a contingent matter in Cohen’s understanding.

80. Ibid., 220.81. Ibid., 260.82. By the use of force, not promoting the use of force, so that the regulation is not standpoint-

based, but based on content. According to Cohen, a representation of the use of force made withcritical intent would not be threatened by such a regulation, since that would involve considerablesocial value and thus not represent a case of obscenity. Ibid., 258, and see 258, n. 134.

83. MacKinnon, Only Words, 51.84. Frank Michelman, “Liberties, Fair Values, and Constitutional Method,” in Stone et al., The

Bill of Rights in the Modern State, 102.85. MacKinnon, Only Words, 52, 55f.86. Ibid., 82.

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87. This is also Michelman’s position, “Conceptions of Democracy,” 303f; see MacKinnon,Only Words, 74.

88. On this see Richard A. Epstein, “Property, Speech, and the Politics of Distrust,” in Stone etal., The Bill of Rights in the Modern State, 41ff.

89. See John Rawls, Political Liberalism (New York, 1993), 356ff.90. Michelman, “Liberties, Fair Values, and Constitutional Methods,” 102.91. In any case, the self-estimation of some pornography opponents as “hunted down, stigma-

tized, excluded and unpublished” (this rising climax from MacKinnon, Only Words, 74) seems tohave had the rug pulled out from under it performatively.

92. MacKinnon, Feminism Unmodified, 77.93. Rorty, “Feminism and Pragmatism,” 234.94. Cornell, Imaginary Domain, 149ff.95. Michelman, “Liberties, Fair Values, and Constitutional Methods,” 103, n. 44. See Sunstein,

Democracy and the Problem of Free Speech, 217 and, especially, Michelman, “Conceptions ofDemocracy.”

96. See Dworkin, “Two Concepts of Liberty,” 108f.97. Dworkin, “Women and Pornography,” 38.98. See J. Habermas, Faktizität und Geltung (Frankfurt, 1992), 153.99. Iris Young describes such a normalization and universalization of the experiences of a

specific group as “cultural imperialism.” Justice and the Politics of Difference (Princeton, 1990),59f. The appropriateness of the soap-opera analogy, found, for example, in Dworkin, “TwoConcepts of Liberty,” is limited, of course, since no one is ready to react to such effective instancesof stereotyping by forbidding them or suing for damages.

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Misogyny and Feminism: The Case of MaryWollstonecraft

Barbara Taylor

Misogyny and feminism: a provocative pairing. And to attach the misogynistlabel to Mary Wollstonecraft, heroine of western feminism, seems provocationindeed. In 1994 Susan Gubar published an article on Wollstonecraft offeringprecisely these provocations. In her “Feminist Misogyny: Mary Wollstonecraftand the Paradoxes of ‘It Takes One to Know One,’” Gubar took a coolly irrever-ent look at Wollstonecraft and the western feminist tradition that succeeded her,and concluded that for the last two hundred years “the histories of feminism andmisogyny have been (sometimes shockingly) dialogic.”1 From 1792 on, femi-nists, fondly believing they were marching to their own political drum, have infact all too often been engaged in an elaborate pas de deux with women-hatingcontemporaries, matching idea to idea in an “uncanny mirror dancing thatrepeatedly link[ed] feminist polemicists to their rivals and antagonists.”2 Hencethe “Takes One to Know One” of her subtitle: the feminist knows at whom tohurl the charge of woman-hater because his features are so shockingly like herown; the adversarial hailing is a repudiated self-recognition. Accuser andaccused are one.

This article begins from Gubar’s provocations. If Mary Wollstonecraft can bedescribed, as Gubar emphatically does, as a misogynist, how are we – as inheri-tors of Wollstonecraft’s project – to understand the origins and implications ofthis anti-womanism for her emancipationist aspirations? What kind of hereticalhistorical writing is capable of addressing such difficult issues? Heroic versionsof the feminist past of the sort popular during the heyday of women’s liberationclearly will not do, but integrating a misogynist element into the feminist storywill require more than just abandoning these earlier idealizations. If Gubar’sargument is even partly right – as I think it is – a radical revision of approach isneeded.

The necessary revision I am proposing here is toward a method that combinestraditional modes of historical enquiry – the intensive scrutiny of sources andcontext – with an interpretive theory capable of tackling what I will call the deepagenda of feminism, by which I mean the unconscious fantasies as well as theconscious intentions fuelling feminist ideals. Every political agenda is driven byunacknowledged and unacknowledgeable wishes as well as by more or less real-istic ambitions: desire in the social/political sphere is no more reason-governedthan desire in any other area of life. This may seem so obvious as to hardly be

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