Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography

Research Handbook on Gender and Constitutions, Helen Irving and Ruth Rubio-Marin (eds), Forthcoming

U of Melbourne Legal Studies Research Paper No. 744

18 Pages Posted: 15 Jun 2016 Last revised: 14 Mar 2017

Katharine Gelber

University of Queensland

Adrienne Stone

Melbourne Law School

Date Written: June 14, 2016

Abstract

The constitutions of democratic states universally contain protection for freedom of expression or a closely related right, such as freedom of ‘speech’ or ‘opinion’. Although feminist thought has much to offer the study of this right, with some notable exceptions, feminist thought has not focused as much on freedom of expression as it has on some other constitutional questions, such as rights to equality, privacy and reproductive freedom, and legal regulation of the family.

A glaring exception to this ‘gap’ between feminist legal thought and freedom of expression arises in relation to the legal regulation of ‘pornography’ The question of whether freedom of expression protects pornography from regulation has been among the most important — and certainly high profile — forums for the engagement of constitutional law with feminist ideas.

In this chapter, we examine this debate through three lenses. First we turn to the philosophical foundations of the arguments for and against the regulation of pornography. Next we turn to the influence on law (specifically the constitutional law of Canada) of the feminist argument for the regulation of pornography. The Canadian case law on this question provided a sharp contrast with the constitutional law of the United States. We trace the sources and nature of this difference, showing in particular the force of the feminist critique of pornography in Canadian constitutional law and reflecting on the differences between American and Canadian law on this question. Lastly, we broaden our comparative lens to consider other jurisdictions noting that the feminist critique of pornography has had little effect beyond the constitutional law of Canada (though some analogous ideas are evident in German law) and conclude by noting some fruitful avenues for future research.

Keywords: Constitutional Law, comparative constitutional law, freedom of expression, freedom of speech, pornography, obscenity

JEL Classification: K00, K19, K39

Suggested Citation

Gelber, Katharine and Stone, Adrienne, Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography (June 14, 2016). Research Handbook on Gender and Constitutions, Helen Irving and Ruth Rubio-Marin (eds), Forthcoming; U of Melbourne Legal Studies Research Paper No. 744. Available at SSRN: https://ssrn.com/abstract=2795432

Katharine Gelber

University of Queensland ( email )

Adrienne Stone (Contact Author)

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010

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