Justice and Injustice in Law and Legal Theory

Freedom, Equality, Pornography

Freedom, Equality, Pornography Joshua Cohen Equality and Expressive Liberty According to Andrea Dworkin, "The left--ever visionary-eontinues to caretake the pornography industry, making the whole wide worldstreet , workplace, supermarket-repellent to women."l Dworkin is right that many people who locate themselves on the political Left oppose restrictive pornography regulations.2 Her explanation of this opposition is uncertain, however, because she does not explain what she means by "the left." Let's assume, then, that it refers to people whose This chapter began as a reply to a talk at Brown University by Catharine MacKinnon on "Pornography: Left and Right" (March 1993). I presented a draft in my fall 1993 Political Philosophy seminar at MIT and later versions at Wesleyan University, McGill University Law School, and the Central Division meeting of the American Philosophical Association (spring 1995). I am grateful to those audiences, and to Cass Sunstein and Pam Spritzer, for helpful criticisms, and to Karen Rothkin for research assistance. 1. "Women in the Public Domain: Sexual Harassment and Date Rape," in Sexual Harassment : Women Speak Out, ed. Amber Coverdale Sumrall and Dena Taylor (Freedom, Calif.: Crossing Press, 1992),3. This passage restates a central message of Dworkin's earlier writing on pornography: that the Right's celebration of domesticity and the Left's celebration of sexual liberation represent two variations on the same malign themes-a practice of male dominance, an ideology of male supremacy, and a metaphysics of women as whores. See Andrea Dworkin, Pornography: Men Possessing Women (New York: Penguin, 1981), 203-9. 2. The American conflict over pornography regulation has parallels elsewhere, for example in British debate in the early 1990s. For debate among British feminists, see Catherine Itzin, ed., Pornography: Women, Violence, and Civil Liberties (Oxford: Oxford University Press, 1992); Feminists Against Censorship, Pornography and Feminism: The Case Against Censorship, ed. Gillian Rodgerson and Elizabeth Wilson (London: Lawrence and Wishart, 1991); Lynne Segal and Mary MacIntosh, eds., Sex Exposed: Sexuality and the Pornography Debate (London: Virago Press, 1992). 99 100 JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY conceptions of justice give a large place to social equality-everyone who accepts, at a minimum, the following propositions: 1. Substantive equality of opportunity is a basic element of social justice. Substantive equality of opportunity-as distinct from the formal equality of opportunity associated with the ideals of equality before the law and careers open to talents3-requires that people not be disadvantaged in life because they were, for example, born with few resources, with dark skin, or female. 2. Existing inequalities of wealth and power thwart substantive equality of opportunity. 3. Achieving substantive equality of opportunity requires an affirmative role for the state-for example, in regulating market choices. For "if inequality is socially pervasive and enforced, equali~y will require intervention, not abdication, to be meaningful ."4 This understanding of the Left is quite comprehensive, encompassing virtually all egalitarians. Precisely for this reason it highlights the interest and polemical thrust of Dworkin's point. For more than a decade now, one group of feminists has urged pornography regulations as a strategy for combating the erotization of sexual subordination, arguably an important factor in reproducing sexual inequality.5 Egalitarians embrace regulations of "market choices" in the name of economic equality and commonly accept certain regulations of political expression -the content-neutral regulation of political expenditures-in the name of political equality.6 In short, they emphasize the importance of liberty and equality as political values, accept regulations of choice in 3. On the distinction, see John Rawls, A Theory ofJustice (Cambridge: Harvard University Press, 1971), sec. 12; Brian Barry, Theories ofJustice (Berkeley: University of California Press, 1989), secs. 26-28. 4. Catharine MacKinnon, "Privacy v. Equality: Beyond Roe v. Wade," in her Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1983), 100. 5. On equality as the basis for pornography regulation, see Catharine MacKinnon, Only Words (Cambridge: Harvard University Press, 1993), part 3. On feminist opposition to pornography regulation, see Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (New York: Scribner, 1995),31-5. 6. See John Rawls, "The Basic Liberties and Their Priority," in Political Liberalism (New York: Columbia University Press, 1993), lecture 8, secs. 7, 12; Charles Beitz, Political Equality (Princeton: Princeton University Press, 1989), chap. 9. FREEDOM, EQUALITY, PORNOGRAPHY 101 the name of equality, and in some areas (say, the economy...