1. See Harry Kalven Jr., A Worthy Tradition: The Freedom of Speech in America, ed. Jamie Kalven (New York: Harper and Row, 1988), chapter 3.

2. These terms characterize the test for obscenity as formulated by the decision in Miller v California (413 US 24 [1973]); cited in Kalven, Worthy Tradition, 49-50. break

3. See, for example, Andrea Dworkin, Pornography: Men Possessing Women (New York: Penguin Books, 1989), xxxiii, and Catherine MacKinnon, Only Words (Cambridge, Mass.: Harvard University Press, 1993), 22.

4. See Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (New York: Scribner, 1995), 250-56, for studies that show no correlation between pornography and increased harm to women, and see Susan M. Easton, The Problem of Pornography: Regulation and the Right to Free Speech (New York: Routledge, 1995), 10-31, for studies that indicate the opposite.

5. I am using the idea of sexual authenticity to cover both the claim antipornography feminists make that certain expressions of sexuality are ideologically distorted and the claim free speech feminists make that pornography encourages the blossoming of new sexual identities.

6. United States v Schwimmer, 279 US 644 (1929) dissenting, quoted in Strossen, Defending Pornography, 39.

7. Whitney v California 274 US 357 (1927) concurring, quoted in Strossen, Defending Pornography, 48.

8. Ibid.

7. Whitney v California 274 US 357 (1927) concurring, quoted in Strossen, Defending Pornography, 48.

8. Ibid.

9. Jennifer Hornsby, "Speech Acts and Pornography," in Susan Dwyer, ed., The Problem of Pornography (Belmont, Calif.: Wadsworth, 1994), 220-32.

10. Ibid., 225.

9. Jennifer Hornsby, "Speech Acts and Pornography," in Susan Dwyer, ed., The Problem of Pornography (Belmont, Calif.: Wadsworth, 1994), 220-32.

10. Ibid., 225.

11. Quoted from The Sunday Times, December 12, 1982, in Hornsby, "Speech Acts and Pornography," 226.

12. The Times, June 10, 1993, quoted in Hornsby, "Speech Acts and Pornography," 232 n. 6. MacKinnon tells another horror story: "In the prosecution by Trish Crawford of South Carolina against her husband for marital rape, a thirty-minute videotape he took of the assault was shown. In it, Mr. Crawford has intercourse with her and penetrates her with objects while her hands and legs are tied with rope and her mouth is gagged and eyes blinded with duct tape. He was acquitted on a consent defense. . . . The defendant testified he did not think his wife was serious when she said 'no'" ( Only Words, 114 n. 3). For a treatment of the issues pornography raises with regard to Gadamer's hermeneutics, see my "Legitimate Prejudices," Laval théologique and philosophique 53 (1997): 89-103.

13. See Cass R. Sunstein, "Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy)," Columbia Law Review 92 (1992): 22-25.

14. Easton, Problem of Pornography, 55-56.

15. See Sunstein, "Neutrality in Constitutional Law," 28.

16. Ibid.

15. See Sunstein, "Neutrality in Constitutional Law," 28.

16. Ibid.

17. See MacKinnon, Only Words, 79.

18. See Sunstein, "Neutrality in Constitutional Law."

19. Buckley v Valeo, 424, US 1, 48-49 (1976), cited in Sunstein, "Neutrality in Constitutional Law," 10.

20. MacKinnon, Only Words, 78.

21. See Kalven, Worthy Tradition, 445-47. break

22. Red Lion Broadcasting v FCC, 395 US 367 (1969).

23. Kleindiest v Mandel, 408 US 753 (1972).

24. Stanley v Georgia, 394 US 557 (1969). See Kalven, Worthy Tradition, 45-46.

25. Abrams v United States, 250 US 630 (1919). Quoted in Kalven, Worthy Tradition, 145.

26. In Ronald Dworkin, ''Do We Have a Right to Pornography?" in A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985).

27. See Rae Langton, "Whose Right? Ronald Dworkin, Women, and Pornographers," in Dwyer, ed., Problem of Pornography, 102.

28. Dworkin, "Do We Have a Right to Pornography?" 360.

29. Ibid., 364.

30. Ibid., 353.

31. Ibid., 364.

28. Dworkin, "Do We Have a Right to Pornography?" 360.

29. Ibid., 364.

30. Ibid., 353.

31. Ibid., 364.

28. Dworkin, "Do We Have a Right to Pornography?" 360.

29. Ibid., 364.

30. Ibid., 353.

31. Ibid., 364.

28. Dworkin, "Do We Have a Right to Pornography?" 360.

29. Ibid., 364.

30. Ibid., 353.

31. Ibid., 364.

32. Feinberg makes a different use of this suggestion than Langton. See Joel Feinberg, Offense to Others (New York: Oxford University Press, 1985), 151, and Langton, "Whose Right?" 105.

33. MacKinnon, Only Words, 12.

34. Ibid., 13.

35. Ibid., 7

33. MacKinnon, Only Words, 12.

34. Ibid., 13.

35. Ibid., 7

33. MacKinnon, Only Words, 12.

34. Ibid., 13.

35. Ibid., 7

36. Strossen, Defending Pornography, 60.

37. Ibid., 39.

36. Strossen, Defending Pornography, 60.

37. Ibid., 39.

38. Also see Chapter Three.

39. Strossen, Defending Pornography, 149.

40. Christine Wenz, "In Our Heads," Stranger, July 5-11, 1993, quoted in Strossen, Defending Pornography, 150.

41. See Georg Lukacs, History and Class Consciousness (Cambridge, Mass.: MIT Press, 1972), 83-110.

42. Lisa Duggen, Nan D. Hunter, and Carole S. Vance, "False Premises: Feminist Anti-Pornography Legislation," in Caught Looking, 82, quoted in Strossen, Defending Pornography, 175-76.

43. See Ellen Willis, "Feminism, Moralism, and Pornography," in Dwyer, ed., Problem of Pornography, 170-76.

44. Myrna Kotesh, "Second Thoughts," in Women against Censorship, 37, quoted in Strossen, Defending Pornography, 175.

45. Strossen documents instances of MacKinnon's refusal to debate anti-antipornography feminists. MacKinnon's excuse seems to be that the form of such debates plays into "the pimps' . . . strategy for legitimizing a slave trade in women" (see Strossen, Defending Pornography, 85).

46. MacKinnon, Only Words, 25.

47. Strossen, Defending Pornography, 40.

48. This third conception is the one Alexander Meiklejohn promotes in Political Freedom: The Constitutional Powers of the People (New York: Harper, 1960). The formulation of the three ideas of the meaning of the principle of free speech that I am using comes from Paul G. Stern's note, "A Pluralistic Reading of the First Amendment and Its Relation to Public Discourse," Yale Law Journal 99 (1990): 926-27. break

49. See Jürgen Habermas, Moral Consciousness and Communicative Action (Cambridge, Mass.: MIT Press, 1990).

50. 163 US 537 (1896).

51. See Strossen, Defending Pornography, 200.

52. MacKinnon, Only Words, 91-92.

53. Strossen, Defending Pornography, 204.

54. See ibid., 229-33.

53. Strossen, Defending Pornography, 204.

54. See ibid., 229-33.

55. See, for example, Jürgen Habermas, "Morality and Ethical Life," in Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholsen (Cambridge Mass.: MIT Press, 1990), 197.