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Gelber, K; Stone, A --- "Constitutions, Gender and Freedom of Expression" [2016] UMelbLRS 6

Last Updated: 22 May 2019

Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography Katharine Gelber and Adrienne Stone

The constitutions of democratic states universally contain protection for freedom of expression or a closely related right, such as freedom of ‘speech’ or ‘opinion’ (Stone 2011). Feminist thought has much to offer the study of this right. For instance, the ‘social constructivist’ commitments of some feminists, which hold that knowledge is constructed through interactions with others in particular social contexts, offer a lens through which to critique and reconstruct notions of truth and autonomy that underscore traditional rationales for freedom of expression (Williams 2009). However, with some notable exceptions (Williams 2005, 2009; Brison 1998, 2000), feminist thought has not focused as much on freedom of expression as it has on some other constitutional questions, such as rights to equality, privacy and reproductive freedom, and legal regulation of the family (Baines and Rubio-Marin 2005).

A glaring exception to this ‘gap’ between feminist legal thought and freedom of expression arises in relation to the legal regulation of ‘pornography’ The question of whether freedom of expression protects pornography from regulation has been among the most important — and certainly high profile — forums for the engagement of constitutional law with feminist ideas. There is, on the one hand, a strongly defended view that the regulation of pornography collides with the protection of freedom of expression as a matter of both theory (Ronald Dworkin 1996) and law (Weinstein 1999). That view is subject to a significant challenge from feminist scholars discussed in this chapter (though as we note that other feminists defend it). This debate has also played out in constitutional law in a number of countries and has been discussed in the comparative literature on freedom of expression. The variety and depth of constitutional thought around the regulation of pornography make it an especially revealing study of the intersection of gender and constitutionalism.

Before proceeding, further, we should acknowledge that the concept of ‘pornography’ is controversial. We explore its complexities – and in particular the feminist conception of pornography – in this chapter. We begin with a review of traditional approaches to the regulation of sexually explicit material, usually framed as the regulation of ‘obscenity’, a concept that focus on the capacity of sexually explicit depictions to corrupt morals . We then turn to the ground-breaking work of Andrea Dworkin and Catharine MacKinnon, which reframed the constitutional question posed by the phenomenon of ‘pornography’ which cast erotic sexual depictions as necessarily involving the subordination of women.

We then examine the debate that ensued through three lenses. First we turn to the philosophical foundations of the arguments, which have been elaborated and further defended by Rae Langton and others. Next we turn to the influence on law (specifically the

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constitutional law of Canada) of the feminist argument for the regulation of pornography. The Canadian case law on this question provided a sharp contrast with the constitutional law of the United States. We trace the sources and nature of this difference, showing in particular the force of the feminist critique of pornography in Canadian constitutional law and reflecting on the differences between American and Canadian law on this question. Lastly, we broaden our comparative lens to consider other jurisdictions noting that the feminist critique of pornography has had little effect beyond the constitutional law of Canada (though some analogous ideas are evident in German law) and conclude by noting some fruitful avenues for future research.

1. Preliminaries: Framing the Constitutional Question

A. Pornography and the Concept of “Speech”’

The debates about the legal regulation of pornography examined in this chapter assume the truth of two propositions. The first, which is widely accepted, is that constitutional rights of freedom of expression typically extend to expressive conduct as well as to the written and spoken word. This is true even where constitutions use other terms like ‘speech’. Thus despite the use of the term ‘the freedom of speech’¹ in the text of the First Amendment to the Constitution of the United States, that right has long been understood as extending to expressive conduct like the display of flags or wearing of armbands (Stromberg v California,

Tinker v Des Moines Independent School District). Indeed, despite the variation in the terminology of these rights, there is a great deal of overlap in the phenomena to which they apply. (For this reason this chapter will generally refer to ‘expression’ unless it is necessary to distinguish between ‘expression’ and ‘speech’ or some other related concept).

The second proposition assumed here is that is that pornography is ‘expressive’ and thus comes within the scope of a constitutional right of freedom of expression. This position is widely accepted but not entirely uncontroversial. Frederick Schauer, for instance, maintains that pornography – at least in many of its typical forms – is essentially an aide to sexual activity and therefore has more in common with sex (which is not within the scope of any principle of freedom of expression) than it does with ‘expression’ or ‘speech’ (Schauer 1982, 181). Despite these views, pornography is typically regarded as expressive and therefore within the scope of constitutional protection. This chapter proceeds on that basis and pursues the question of whether the regulation of pornography is a permissible limit on rights of freedom of expression.

B. From Obscenity to Pornography

The use of the word ‘pornography’ to describe the kind of expression that is the subject of this chapter immediately locates our analysis in feminist approaches. In the more traditional