NCJ Number
98405
Journal
Harvard Law Review Volume: 98 Issue: 2 Dated: (December 1984) Pages: 460-481
Date Published
1984
Length
22 pages
Annotation
The relationship of antipornography laws and first amendment values is examined in the light of the coalition of feminists and social conservatives.
Abstract
The feminists propose measures that attempt to codify a conception of pornography as one that associates women's abuse or degradation with sexual pleasure, either by depicting women as enjoying their abuse or degradations, or by presenting their abuse or degradation as a sexual stimulus for men. Critics of antipornography measures maintain that the proof offered by feminists to show that pornography causes harm to women is insufficent to justify abridgment of the first amendment rights of pornographers and their customers. The possibility is explored that the concerns voiced by the opponents of pornography can be met by fitting pornography within the categories of speech that have been held not to warrant full first amendment protection: incitement to illegal action, obscenity, and libel. It is concluded that an antipornography statute cannot be justified simply by manipulating these recognized categories. It is suggested that the U. S. Supreme Court could still sustain some form of antipornography statute by looking beyond existing doctrines to the reasons underlying the first amendment's tolerance of obscenity and libel laws. Some images, arguably harmful to women's rights are so devoid of value under the first amendment that the Supreme Court should grant the publication of such images only minimal constitutional protection. An examination of available evidence of pornography's harms finds sufficient evidence to support a rational legislative determination that at least some kinds of pornography harm women. In view of the minimal first amendment protection appropriate for pornography, such a legislative determination is adequate to justify prohibition of certain pornographic materials. A total of 121 reference notes are provided.