Obscenity Law Hicklin Test (1868 Common Law) –If a particularly susceptible part of the population when presented with an excerpt finds it offensive, then it is obscene Roth/Alberts (1957) –1) an average person –2) applying community standards –3) finds the material on the whole appeals to prurient interests, then it is obscene A Book Named “John Cleland’s Memoirs of a Woman of Pleasure v. MA 383 US 413 (1966) 1) material that appeal to prurient interests 2) in a patently offensive way and 3) lack social redeeming value Miller (1973) 1) material depicts or describes, in a patently offensive way, 2) sexual conduct judged obscene based on local community standards, 3) and the work taken as a whole lackes serious literary, artistic, political or scientific value.

Traditional (conservative) View 1. Pornography is immoral. 2. The state should protect the moral well-being of society. 3. The state (through its laws) is justified in legislating against pornography to protect society.

Examining the Conservative Argument 1. Pornography is immoral. Pornography debases our character -- It is infantile and masturbatory Debased citizens cannot participate fully in the political process Pornography causes harm 2. The state should protect the moral well-being of society. It is the purpose of the state to protect and promote morality (fragility of the union). 3. The state (through its laws) is justified in legislating against pornography to protect society.

MacKinnon’s arguments against Pornography Causal Argument: Pornography leads to or causes violence against women. Men who use pornography mistake the fantasy for reality and perpetrate violence against women. Even when the violence is not direct, pornography sexualizes women’s subordination to men and this results in or causes all sorts of violent and non- violent material (economic and social) harms. Conceptual Argument: Because pornography constructs women as subordinate, it obliterates the possibility for women’s inequality to be recognized and renders inaudible women’s speech. The existence of pornography denies women freedom to speak and be heard.

Feminist Speech Act Theory J.L. Austin’s distinctions from How to do Things with Words Locutionary speech acts — utterances about the world that are either true or false e.g. “The video Café Flesh is seventy-five minutes long” “Mike Tyson was convicted of rape” “Nina Hartley received $20,000 for Debbie Duz Dishes” Perlocutionary speech acts — utterances that persuade someone to do something e.g. “Let’s watch Behind the Green Door" “You don’t really want to read Story of O, do you?” "Don't spend so much time looking at the magazine!" Illocutionary speech acts — utterances the saying of which accomplishes a particular goal e.g. saying “I do” in front of a justice of the peace in the context of a wedding ceremony marries you OR making the sign of a “T” with both hands as a referee in a basketball game allows the other team to shoot a free throw.