ABSTRACT
68 In the mid-1980s, as my work on the Kalven volume was drawing to a close, I began to offer a course on the First Amendment. Building on a seminar that I taught with Alvin Klevorick on the relationship between economic and political power, I focused on cases involving campaign finance, the mass media, and the attempt of political activists to use privately owned property, such as shopping centers, to disseminate their views. Free Speech and Social Structure, my initial effort to synthesize many of the themes that emerged from the course, naturally focused on these kinds of issues (see Chapter 1).
In the late 1980s and early 1990s, a number of students in the course began to wonder whether my theory of the First Amendment might be applicable to cases in which inequalities had a social rather than an economic basis. Engaged by the arguments of radical feminists, which were then sweeping the legal academy, they wondered whether the state might have a role in curbing a social institution—pornography—that they saw as an important source of gender inequality. My personal loyalties were sharply divided—I consider both Catharine MacKinnon and Frank Easterbrook, one who spearheaded the campaign against pornography, the other who blocked it, among my favorite students—and the essay that follows is my attempt to come to terms with the new constitutional controversy stirred by feminism. The essay was first presented as a lecture in Rome in October 1991 as part of a conference on feminism and was published in the Georgetown Law Journal in August 1992.
