Cynthia A. Stark

Catharine MacKinnon argues that pornography is action, rather than speech. She argues further that the speech/action distinction is what delineates the scope of the First Amendment. It follows, she thinks, that pornography does not fall within the scope of the First Amendment. I argue that the legal distinction between speech and action on which MacKinnon relies is unstable and therefore cannot determine which utterances fall within the scope of the First Amendment. Indeed, attempting to sort utterances by means of the speech/action distinction in order to make this determination can lead to a paradox, which I call the “viewpoint paradox”. That an utterance expresses a particular viewpoint is typically sufficient for its qualifying as speech; yet MacKinnon’s argument that pornography is not speech pivots are her claim that it is an act of subordination because it expresses a particular viewpoint about women.

According to Catharine MacKinnon, pornography itself subordinates women by ranking women as inferior to men and legitimating acts of violence and discrimination against us. As such, pornography is directly implicated in women's diminished moral and civil status. It follows that pornography is not a form of speech, but rather an action, and so does not deserve first amendment protection. I argue that MacKinnon does not adequately support her claim that pornography is an action but instead shows that it is harmful speech. While this might be grounds for limiting it, MacKinnon does not adequately support the view that pornography is especially harmful in comparison to other sorts of misogynist and sexist speech. Hence we lack reasons to limit pornography alone.