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The problem of pornography Can a commitment to free speech be reconciled with the regulation of pornography? In The Problem of Pornography Susan M.Easton argues that it can. Pornography poses a particularly difficult challenge to legal and feminist theory: at what exact point does the freedom of the individual come into conflict with the legal regulation of free speech? Susan Easton explores and evaluates the arguments used within feminism and liberalism for the regulation of pornography by taking John Stuart Mill’s harm principle as a starting point. Given the difficulties of proving harm in the case of pornography, the author turns to the concept of autonomy as an alternative foundation for regulation and argues that incitement to racial hatred legislation might offer the best model for the regulation of pornography. Objections to having any regulation at all, including the appeal to moral independence and the right to free speech, are considered, and the text includes a review of the English and American laws governing obscene materials. Susan Easton is a barrister and Lecturer in Law at Brunel University, London. She has written on Hegel and feminism and is the author of The Right to Silence, Disorder and Discipline and Humanist Marxism and Wittgensteinian Social Philosophy. She is Editor of the International Journal of Discrimination and the Law. The problem of pornography Regulation and the right to free speech Susan M.Easton London and New York First published 1994 by Routledge 11 New Fetter Lane, London EC4P 4EE This edition published in the Taylor & Francis e-Library, 2005. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” Simultaneously published in the USA and Canada by Routledge 29 West 35th Street, New York, NY 10001 © Susan M.Easton All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. Library of Congress Cataloging in Publication Data Easton, Susan M. The problem of pornography: regulation and the right to free speech/Susan M.Easton. p. cm. Includes bibliographical references and index. 1. Obscenity (Law)-United States. 2. Pornography-United States. 3. Freedom of speech-United States. 4. Obscenity (Law)-Great Britain. 5. Pornography-Great Britain. 6. Freedom of speech Great Britain. I. Title K5293.E27 1994 344 .0547–dc20 [342.4547] 93–37378 CIP ISBN 0-203-98120-0 Master e-book ISBN ISBN 0-415-09182-9 (hbk) ISBN 0-415-09183-7 (pbk) Contents Acknowledgements vii Introduction viii 1 The liberal defence of pornography 2 The types of harm 10 3 Proving harm 31 4 Diversity and autonomy 40 5 Feminism, truth and infallibility 50 6 Free speech and majoritarianism 57 7 The slippery slope 63 8 Feminism and puritanism 76 9 The protection of free speech 81 10 Interpreting the First Amendment 90 11 The civil rights Ordinances 104 12 Freedom of speech and the regulation of pornography in English law 116 13 The `right' to consume pornography 138 14 Incitement to sexual hatred 150 15 Conclusion