Why are democracies unresponsive to well-documented injuries in the production and by the consumption of pornography? Legal challenges to pornography in Canada and the United States in which sexual subordination, not moral notions of "obscenity," were the driving rationale, show democracies inadequately recognizing gender-specific harms. Changes in Canadian obscenity doctrines to account for harm and inequality, in contrast with the U.S. reign of "free speech," did not deliver a corresponding change on the ground. Developments in democratic theory, international law, and the particular U.S.-Canadian legal trajectory, and consideration of the void of institutions articulating the interests of those victimized in and by pornography, suggest the need to adopt empowering civil remedies.
Keywords: pornography; prostitution; freedom of speech; democracy; equality; feminist theory; comparative judicial politics; democratic theory; freedom of expression
Pornography has been found to desensitize societies to violence against women, inspiring rapes and contributing to the sexual subordination of women to men (see below). In making their materials, pornographers exploit sex inequalities to coerce women and children to perform unwanted or dangerous sexual acts. Existing legal regulations in democratic societies have not approached pornography with these realities in mind, but usually as a right protected by freedom of expression or an "obscene" expression, offending the public rather than harming any particular group. In rare but important instances, pornography has legally been seen as a harmful practice violating women's human or democratic rights to equality. This analysis exposes tensions and poses questions regarding democracy, equality, and the meaning of citizenship. If a practice such as pornography systematically reproduces and sustains a group's domination of another, and if one democratic ideal is to provide equality among citizens who may participate in self-rule, existing democracies may be regarded as insufficient to their own ideals when they do not regulate it effectively. In this light, the question becomes what, under present systems of democracy, are the obstacles to democracies addressing these problems, and what alternatives exist? To pursue this inquiry, in this paper, I compare events in Canada and the United States in which laws regulating pornography in democracies were challenged on the basis that they did not respond to its harms to women's equality.
In Canada, the Supreme Court held that prohibiting pornography that is violent, degrading, or dehumanizing, seeking "to enhance respect for all members of society, and non-violence and equality in their relations with each other," promotes equality, a fundamental democratic value "that the restriction on freedom of expression does not outweigh" (R. v. Butler 1992, 509). In the United States, federal courts held that giving women a civil right to sue pornographers for the harm to women to which their pornography contributes was viewpoint discrimination in violation of First Amendment freedom of expression (American Booksellers Association, Inc., v. Hudnut 1985, 331). These legal differences notwithstanding (see, e.g., Mahoney 1997; LaSelva 2004, for overviews of constitutional differences), the heterosexual pornography ruled criminal by Butler in 1992 was reportedly still available "on any given day" (Kendall 2004, 165; cf. McCormack 1993, 177; Johnson 1995, 86), and recently received renewed protection consistent with a narrow reading of Butler (see below). Similarly, existing U.S. regulation is arbitrary and ineffectual (see, e.g., Krause 2008, 52-56; describing declining obscenity prosecutions; Lochner 2007, 30-31; Downs 1989, 20-21), with most forms of pornography making their way to the market (see, e.g., Rimm 1995; Bjørnebekk and Evjen 2000).1 The implications for democratic theory and practice, specifically women's full citizenship, are substantial. …