Hard Cases

1
Hard Cases

• When ought government to intervene in our
  affairs?
• Rights, Positive and Negative

2
Definition of Pornography

• Latin To write about whores
• Not necessarily the same as obscenity

3
History of Pornography

• 1920s Stag Films
• 1950s Playboy
• 1960s Store-fronts
• 1980s Cable-Access TV
• Deregulation of broadcasting
• 1990s Internet Satellites

4
Pornography the Law

• The Miller Test
• Prurience
• Patent Offensiveness
• No serious artistic value

5
Pornography the Law

• Offensiveness is the linchpin of this standard
• Pornography offends us so harms us
• Liberals (Brennan) who gets to decide what is
  harmful?

• In practice, Miller protects most forms of
  pornography

6
Pornography Feminists

• Pornography harms women
• It sets up a gender hierarchy
• Puts men women in their proper places

Catherine MacKinnon
7
Pornography Feminists

• Obscenity doctrine ignores this harm because it
  is male-centered
• We cannot have free speech when individuals are
  not equal to begin with must take social
  circumstances into account
• Court should ignore distinction between public
  and private
• Stanley v. GA (1968)
• No such thing as a free marketplace free for
  whom why? Sunstein

8
American Booksellers Assn. V. Hudnut (1985)

• City Ordinances
• Individuals may not traffic in pornography
• coerce others into performing in pornographic
  works
• or force others to watch the pornographic
• finally, anyone injured by someone who has seen
  or read pornography has a right of action against
  the maker or seller.

9
Key Issue

• Does pornography cause harm?

• Can this legislation pass the Miller Test?

10
Sunsteins Point of View

• much pornography lies outside first amendment
  concerns
• it causes sufficient harm to warrant regulation
• connection between pornography violence against
  women
• connection between pornography anti-women
  behavior
• pornography plays a part in silencing women

• we ban ads for gambling, cigarette smoking
  alcohol. Why not pornography?
• Current law takes the social consensus as a
  foundation for the decision

11
Pornography the Conceptual Issues

• What does it mean to have a right?
• How does one get rights?

• Can government only exercise a negative force on
  society?
• Should government seek to account of social
  inequalities?