Pornography and Cognition: A Reply to Cass Sunstein

Abstract

In Pornography and the First Amendment 2 Cass Sunstein argues that government censorship of pornography is constitutionally permissible under the first amendment. As Professor Sunstein himself points out, his argument in favor of regulation is relatively simple.3 First, pornography is entitled to only a level of first amendment solicitude; under any standard, pornography is far afield from the kind of speech that the first amendment conventionally protects. Second, the harms that pornographic materials produce are sufficient to justify regulation.4 This reply to Professor Sunstein is not directed to the second part of the argument-that pornography is harmful5-but rather to the first. In short, this essay challenges the way Professor Sunstein categorizes pornography as low speech. As Professor Sunstein openly concedes, the structure of high and value speech is not easy to apply to pornography under the current terms of debate. The contemporary feminist critique of pornography is rooted in the proposition that pornography is ideological-that it fosters a world-view in which women are at best second-class citizens, and at worst victims. However repulsive such an ideology may be, it falls within a category of speech that seeks to persuade and thus would be