Feminism, Pornography, and Law

Abstract

Since Roth v. United States,' the Supreme Court has maintained that is not protected by the freedoms of speech and press.2 This means that, consistent with the usual procedural constraints,3 state and federal governments can regulate obscene books, photographs, and movies.4 At the same time, the Court has developed a restrictive definition of obscenity that, in effect, limits obscenity regulation to hardcore pornography.6 First amendment theorists have widely criticized obscenity law. Their arguments tend to focus on the problem of defining obscenity, and some criticize any attempt to define or regulate obscenity.7 The theorists' legal arguments are informed by their perceptions of pornography and its social significance; these perceptions may be broadly categorized as either conservative or liberal.8 The Court's current position represents a compromise between the conservative and liberal positions, a position that satisfies neither side.' Recently, a new voice entered the obscenity law debate. Feminists have begun to articulate their opposition to pornography,'0 to organize t B.S. 1973, Massachusetts Institute of Technology; Ph.D. 1978, J.D. 1984, University of Pennsylvania. The author wrote this Comment while a student at the University of Pennsylvania Law School. 1 354 U.S. 476 (1957). 2 Id. at 481. 3 See F. SCHAUER, THE LAW OF OBSCENITY 206-27 (1976). 4 Most states regulate obscenity. For a categorization of obscenity statutes, see New York v. Ferber, 458 U.S. 747, 755 n.7 (1982). Federal regulation in the area includes provisions regulating the use of the mails, see 18 U.S.C. ? 1461 (1982); 39 U.S.C. ?? 3001, 3008, 3010 (1982), common carriers, see 18 U.S.C. ? 1462 (1982), interstate transportation, see 18 U.S.C. ? 1465 (1982), and importation into the United States, see 18 U.S.C. ? 1462 (1982); 19 U.S.C. ? 1305 (1982). For a discussion of the history of federal obscenity regulation and a description of current federal law in the area, see F. SCHAUER, supra note 3, at 169-91. 5 See infra notes 32-36 and accompanying text. 6 See infra notes 66-71 and accompanying text (discussing views of liberal theorists). 7 See infra notes 40-44 and accompanying text. 8 See infra notes 45-59 and accompanying text. ' See infra notes 60-64 and accompanying text. 10 See, e.g., A. DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN (1981); S. GRIFFIN, PORNOGRAPHY AND SILENCE (1981); TAKE BACK THE NIGHT: WOMEN ON PORNOGRAPHY (L. Lederer ed. 1980).