Freedom of Oppression?: Feminist Perspectives on Freedom of Expression, Pornography and Minority/Non-Normative Sexuality

Abstract

The relationship between sexual expression and censorship has, for hundreds of years, been a difficult issue for governments and courts to address; in the post-WWII era, the rapid expansion of sexually explicit media appeared to require a more nuanced approach than the existing legal doctrine. While the United States has developed obscenity law to address pornographic material, obscenity law as currently applied has been criticised on multiple counts and from multiple perspectives. Anti-pornography feminists claim that obscenity law approaches pornography from the wrong viewpoint, arguing that pornography is both discriminatory and active violence against women and should be banned, whereas feminists allied with anti-censorship groups argue against banning sexual expression on the basis that this will endanger valuable feminist expression as well as more problematic sexual expression which engenders patriarchal norms. This criticism is shared by minorities both within and beyond the feminist community; gay, lesbian, and non-normative sexual expression has long been targeted more severely by obscenity law, and alternative feminist regulation of pornography would have a similar effect due to a seeming lack of recognition of feminist intersectionality with these minority groups. Censorship of performative sexuality also arguably denies agency and autonomy to those women who gain personal fulfilment and empowerment from such acts. From a feminist legal perspective, the question can be phrased as follows: should freedom of expression go so far as to protect these displays of sexuality, or should we question the inherent worth of something that arguably perpetuates a patriarchal system of oppression and discrimination? Furthermore, even if one tends toward the latter perspective, how to address the issue legally is difficult. In this paper, I will first discuss the development of United States obscenity law and treatment of pornography as “second-class” expression, and briefly compare it to relevant New Zealand legislation. The paper will then move to a consideration of the main groups of feminist thought and critique relating to sexual expression and pornography, as well as a consideration of minority and non-normative sexuality. The jurisprudence of pornography and freedom of expression is largely centred in the United States context. As a result, discussion of this topic will generally focus on the United States legal perspective. However, the paper will also compare how American obscenity law, versus New Zealand law, treats feminist and minority interests, and evaluate their effectiveness in the balancing of freedom of expression and prevention of discrimination and harm.