This document discusses two versions of pornography: as obscenity that dehumanizes women, and as sexually explicit speech protected by Miller. It considers whether pornography could be an intermediate category between obscenity and protected speech. It also examines the tensions between rights of free speech and rights to equality, and between the dissemination of pornography and its hypothesized negative effects on how women's assertions are perceived.

1. Pornography

2. Two Versions
• Pornography as a subset of obscenity
– Obscene materials that present women
dehumanized as sexual objects
• Pornography as sexually explicit but not
obscene under Miller
– Perhaps because it is not inconsistent with
contemporary community values

3. Obscene Pornography
• Viewpoint discriminatory, because singles
out treating women as dehumanized, but
not men
• R.A.V. allows viewpoint discrimination
within an unprotected category where the
viewpoint is the very reason for treating
the speech as unprotected
– Moral reasons for obscenity regulation

4. Pornography Outside Miller
• Because it’s not obscene, it’s “high value”
– Should there be an intermediate category?
• “Not what we’ve sent our children to war to fight to
defend” – Stevens in Young v. American Mini-
Theatres
• “Rights versus rights” and “speech versus
speech”

5. Rights Versus Rights
• Where a regulation that promotes a “mere policy
interest” burdens high-value speech, the speech
prevails
• What about a regulation that promotes a
“constitutional value” like equality?
– State action theory
• Constitutional provisions apply only to government action
• There’s no “constitutional” interest in eliminating private
discrimination, only a policy interest in doing so
– Aside on government duties and subsidies

6. Speech versus Speech
• The silencing argument
– Dissemination of pornography leads to
undervaluing assertions made by women
• Not “silencing” as in “you can’t talk,” but “silencing”
as not taking assertions seriously
– Empirical accuracy, given hypothesized
enactment of anti-pornography statute
• Deference to legislative judgment
• Madisonian regulation to maximize speech

7. Speech versus Speech
• The silencing argument
– Dissemination of pornography leads to
undervaluing assertions made by women
• Not “silencing” as in “you can’t talk,” but “silencing”
as not taking assertions seriously
– Empirical accuracy, given hypothesized
enactment of anti-pornography statute
• Deference to legislative judgment
• Madisonian regulation to maximize speech