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Katharine Gelber and Adrienne Stone

This chapter explores the intersection between constitutional law and feminist legal thought in the context of the legal regulation of pornography. We begin with a review of traditional approaches to the regulation of sexually explicit material, usually framed as the regulation of ‘obscenity’, a concept that focuses on the capacity of sexually explicit depictions to corrupt morals. We then turn to the ground-breaking work of Andrea Dworkin and Catharine MacKinnon, which reframed the constitutional question posed by the phenomenon of ‘pornography’ and which cast erotic sexual depictions as necessarily involving the subordination of women. We then examine the debate that ensued through three lenses. First we turn to the philosophical foundations of the arguments, which have been elaborated and further defended by Rae Langton and others. 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 provides 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, noting that the feminist critique of pornography has had little effect beyond the constitutional law of Canada (although some analogous ideas are evident in German law), we broaden our comparative lens to consider other jurisdictions, and conclude by noting some fruitful avenues for future research.

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Adrienne Stone, Rishad Chowdhury and Martin Clark