Pornography, Harm, and Censorship: A Feminist (Re)Vision of the Right to Freedom of Expression

BETTINA QUISTGAARD

ABSTRACT

In R. v. Butler, the Supreme Court of Canada held that while the anti-obscenity provisions in the Criminal Code constitute a limitation of the right to freedom of expression guaranteed in s. 2(b) of the Charter of Rights and Freedoms, the limitation can be justified on the basis of the harm that pornography causes to women. Because the court based its judgment on the traditional liberal understanding of the purposes of freedom of expression, however, it misconceived the nature of the harm caused by pornography, searching unsuccessfully, for example, for causal links between pornography and violence towards women. Some feminist theorists also approach pornography in this way, and argue that censorship is the "solution" to the harm caused by pornography. The author argues, however, that such an analysis leads to a misguided opposition between feminism and freedom of expression and implicates feminism in an understanding of freedom of expression that itself contains the same patriarchal values that inform traditional liberalism. The author then shows that feminist and poststructuralist theories of language yield a richer analysis of pornography which focuses on its constitutive role in creating the discourse within which women and their sexuality come to be understood within society. From this perspective, it is possible to move beyond the traditional emphasis on censorship as the antidote to pornography, and to develop a positive conception of the right to free expression that would enable women to create alternative understandings of their experience, which can be counterposed to the traditional patriarchal discourse that pornography exemplifies.

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Citation: (1994) 52(1) U.T. Fac. L. Rev. 132.
Copyright © 1994. University of Toronto Faculty of Law Review.
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