Playing by Pornography's Rules
The Regulation of Sexual Expression
Bibliographic Data
| ID | 5847355 |
|---|---|
| Authors | David Cole (0000-0003-3029-1796), David P Cole (corresponding author) |
| Year | 1994 |
| Volume | 143 |
| Issue | 1 |
| Pages | 111-111 |
| Publication date | 1994-11-01 |
| Peer Reviewed | Yes |
| Open Access | No |
| Type | ARTICLE |
| Venue | University of Pennsylvania Law Review (JOURNAL) |
| Journal identifiers | ISSN: 0041-9907 • E-ISSN: 1942-8537 |
| Publisher | JSTOR (PUBLISHER) |
| DOI | 10.2307/3312517 |
| OpenAlex | W54497478 |
| Language | EN |
| Citations received | 4 |
protection, but no one denies that a novelist, filmmaker or playwright has the right to depict illegal acts.Central to the First Amendment tradition is the notion that one has broader freedom in one's expression than in one's acts.When it comes to sex, however, the rule is reversed.While sexual conduct is far from unregulated,is constitutional law permits more extensive regulation of the public representation of sexual behavior than of the behavior itself.As construed by the Supreme Court, the First Amendment not only fails to protect representations of illegal sexual conduct; it permits the state to criminalize the representation of sexual conduct that is itself legal to engage in.Obscenity doctrine, for example, permits the proscription of prurient depictions of "patently offensive" sexual conduct, whether or not the underlying conduct is (or could be) unlawful.Similarly, while private nude dancing has never been banned, its public display may be extensively regulated. 4 This Article seeks to address the questions raised by Justice Stewart's sentence, Barnes's image, and our culture's obsession with regulating the public representation of sex.Part I argues that the conventional justifications for permitting the regulation of sexual expression-that sexual expression is not political, and is more akin to conduct than speech-are inadequate because they rest on overly simplistic notions of both sexuality and speech, and are contrary to core First Amendment principles.In Part II, I suggest that the answer to why representations of sexual conduct are more subject to regulation than sex itself lies in the demarcation between public and private spheres.Laws 15 In particular, virtually all states prohibit prostitution and incest, while, as of 1994, only eighteen states have criminalized sodomy.Search of LEXIS, Codes Library, Allcde File (Sept.21, 1994) (finding antisodomy statutes in Alabama, Arkansas, California, Connecticut, Georgia, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, New Mexico, New York, Ohio, Oklahoma, Oregon, South Dakota, and Utah).Prostitution, however, is generally tolerated despite the laws on the books, and sodomy is rarely prosecuted.I do not mean to understate the significance of laws regulating sexual behavior.Particularly with respect to prohibitions on homosexual sex, such laws are often "enforced" by less direct means than a criminal prosecution.Thus, government employers may fire gay employees, courts may deny gay and lesbian parents custody of their children, and private parties may "enforce" such prohibitions through gay-bashing and the like.14 Similarly, in Great Britain, "moral regulation in the 1970s took the form of the regulation of representations of sexuality as opposed to regulation of sexual behaviour
Expression (computer science · Pornography · Gender, Feminism, and Media · Sex work and related issues · Sexuality, Behavior, and Technology
| Unique citing works | 4 |
|---|---|
| Citations per year | 0,16 |
| Citation span | 2001 - 2024 (24) |
| Citation velocity | recent |
| Highly cited | No |
| Citation types | Neutral: 4 |