Giving Women the Benefit of Equality: A Response to Wirenius

This essay offers a feminist response to Mr. Wirenius’s provocative critique of Professor MacKinnon. Whether supporting or opposing pornography regulation, feminist legal scholars tend to approach the issue from neither of the traditional positions – First Amendment absolutist or moral censor. Rather, a feminist approach to pornography is informed by an understanding of the profound harm that pornography can and does inflict upon women. Consequently, even for feminists who many oppose pornographic regulation, the choice is not an obvious one, as it seems to be for Mr. Wirenius, between the good of civil libertarianism and the evil of totalitarianism.

An alternative response to Mr. Wirenius’ question as to why we protect speech that harms is to recognize that we don’t – at least no always – and that out commitment to free speech at times collides with other equally important values, including perhaps equality. In light of this selective protection of speech, a First Amendment analysis of pornography regulation depends les upon manipulating categories of non-speech or distinguishing between content and viewpoint regulation than upon understanding the nature of the harm and making a judgment about its significance.