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Abstract

This paper examines the regulation of pornography outside the usual framework of First Amendment argument. Though it may seem heretical to some, this article postpones First Amendment discussion in order to promote a novel understanding of pornography regulation. For reasons explained in a later section, I believe First Amendment arguments are not dispositive of this issue. While free speech may be the gravamen of courtroom argument, there nevertheless remain underlying questions concerning the logic of antipornography reform that can be best seen outside the glare of free speech rhetoric.

My focus is the problem of identifying and quantifying the consequential harm of pornography consumption. This problem has been well attended by those, such as Professor MacKinnon, who see pornography at the root of most, if not all, gender inequality. A central, and troublesome, part of the antipornography argument lies in the difficult realm of consequence/responsibility. Even assuming that pornographic materials have identifiable harms associated with them, there remain some extremely delicate issues for the law to tackle. For example, the law must address how to determine the extent of pornography's influence on behavior, in order to establish the threshold that must be reached before regulation is necessary. These issues, revolving primarily around the question of quantifying the effect of pornography, will be central in this discussion.

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