On Pornography, Representation and Sexual Agency

The regulation of pornography is a particularly problematic area of freedom of speech law and its complexities are highlighted by the widely varying approaches adopted in different jurisdictions. The initial question of whether sexually explicit material can be considered as speech will be addressed in a theoretical context. Then, the focus will move to the theoretically justifiable boundaries of the protection within the spectrum of sexually explicit material, with emphasis upon the distinction between pornography and obscenity. Finally, assuming that such material is protected by constitutional speech clauses, justifications for limited protection will be explored with reference to specific and potential harms. These theoretical intricacies will be analysed through the jurisprudence from the United States, Canada, and the European Court of Human Rights (ECtHR), which represent the application of different theoretical positions. The relative strengths and weaknesses of these positions will then be considered with a view to forming a more coherent policy for the regulation of sexually explicit material.

Social Theory and Practice

In the 1980s and 1990s, a series of attempts were made to put into U.S. law a civil rights ordinance that would make it possible to sue the makers and distributors of pornography for doing so (under certain conditions). One defence of such legislation has come to be called "the free speech argument against pornography." Philosophers Rae Langton, Jennifer Hornsby and Caroline West have supposed that this defence of the legislation can function as a liberal defence of the legislation: in particular, a defence of the legislation based on the value of women's liberty. This would be somewhat unexpected given MacKinnon's own antipathy toward liberalism. In this paper, I argue that the free speech argument against pornography cannot be used as a liberal defence of the ordinances. The legislation is, to some extent, self-defeating insofar as it understood in terms acceptable to a fairly standard kind of liberal. This becomes apparent when we consider the value pornography can have for women, which we can see if we consider what female makers, distributors and consumers of pornography have to say about why they make, distribute and consume it.

Womens Studies International Forum, 2000

Synopsis -This article examines the limitations of the effects model for feminist anti-pornography work. As a contribution to the on-going debate about the nature of pornography and its relationship to violence against women, this article aims firstly to identify why traditional effects research, which attempts to establish a causal relationship between pornography and violent behaviour, is a dubious ally for anti-pornography feminism. Secondly, the enduring implications of the effects model for feminist anti-pornography politics are explored. It is argued that anti-pornography feminists need to reject the effects model and return to the crucial question of how some pornographies are produced and consumed in ways that are abusive to women.

Constellations, 1999

A common argument advanced for censorship of pornography is that the material causes men to treat women badly. That is, pornography is causally implicated in sexual inequality, sex discrimination, and sexual violence. These claims, frequently made by pro-censorship feminists, were reiterated in Parliament by MPs who supported stricter censorship legislation, particularly during debates on the Video Recordings Bill 1987 and the Films, Videos, and Publications Classification Bill 1993. The MPs advancing this type of 'bad effects' argument generally tended to assume that a causal connection between pornography and the ill-treatment of women had been established and, furthermore, that censorship was the most appropriate means for combatting the cause of these bad effects. The wider implications of this line of reasoning-that everything which might have bad consequences should be censored-were not discussed in the House, nor in media interviews with those involved in the bills' passages into law. Indeed, implicit in the 1993 debates was an assumption that to oppose censorship of material that might be causally implicated in violence and discrimination against women would be, in effect, to condone (or, at least, be willing to tolerate) the violent acts allegedly caused by pornography. Nothing that was said in Parliament showed why MPs were justified in holding this assumption. The argument that will be considered in this chapter alleges that pornography causes harm to women, that whatever causes harm to women should be banned, and that pornography should therefore be banned. The type of harmful effect I will focus on is that of sexual violence against women. The first part of this chapter will challenge the premise that pornography does, in fact, cause sexual violence. I will argue both that there is no convincing evidence to show that pornography has such an effect and also that it seems implausible to suppose that pornography could have such an effect unless a particular consumer of pornography is already somehow predisposed to rape-in which case pornography is unlikely to be the only thing that might activate such latent tendencies. Next, I will challenge the premise that whatever causes harm to women should be banned regardless of other considerations (such as any benefits the material might have for people who are not predisposed to harm others). In this context, I will consider the Human Rights Commission's suggestion that the producers of pornography should be held liable (criminally or civilly) every time one of their products is causally implicated in an act of sexual violence. Finally, the possibility that repressive censorship legislation may itself have harmful consequences for women and society in general will be discussed to see whether the possible prevention of a small number of rapes provides a very compelling justification for risking these other types of harm.

Research Handbook on Gender, Sexuality and the Law, 2020

Gender and Authority across Disciplines, Space and Time, 2020