She’s back! Strossen’s new and updated edition of ‘Defending Pornography’ — First Amendment News 417

Nearly a quarter-century ago, Wendy Kaminer wrote: “I’m afraid this book will always be timely. . . . [T]he urge to censor . . . seems to come as naturally to people as the diverse sexual desires censors condemn.” 

Kaminer was referring to the second edition of Nadine Strossen’s 1995 book, “Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights.” For a variety of reasons, Kaminer’s prediction proved true — as evidenced by a 2023 PEN America “School Book Bans” update:

During the first half of the 2022–23 school year . . . books [in public school libraries or classrooms] are more frequently labeled "pornographic" or "indecent" [by] . . . activists and politicians to justify removing books that do not remotely fit the well-established legal and colloquial definitions of "pornography." Rhetoric about “porn in schools” has also been advanced as justification for . . . new state laws, some of which would bar any books with sexual content [including] . . . health-related content. . . . Overwhelmingly, book banners continue to target stories by and about people of color and LGBTQ+ individuals.

It is against that backdrop, and much more, that professor Strossen returns to the scene of crimes against the First Amendment in a just-released 2024 edition of “Defending Pornography.”

In her true-to-form spirit, Strossen tackles her subject yet again with a blend of verve, acumen, and nuance. Make of the always controversial “First Lady of Liberty” what you will, but one must grant this: Strossen is formidable in making her case. 

Given that, below is an excerpt from the preface to the new edition: 

The lack of evidence substantiating any harmful impact of sexual expression, which Defending Pornography discussed in detail, was reaffirmed by a federal judge just before this preface went to print. On August 31, 2023, US District Judge David Alan Ezra issued a preliminary injunction against a Texas law requiring age verification to access sexual expression content online. The law’s stated aim was to protect children from the alleged adverse impacts of such expression; the judge ruled that the law violates the First Amendment. Considering the evidence in the most favorable light from the government’s perspective, Judge Ezra explained that “the relevant science shows, at best, substantial disagreement amongst physicians and psychologists regarding the effects of pornography.” He cited a 2022 study of anti-pornography advocacy from 1984 to 2018, which concluded that “the anti-pornography movement is growing ‘more connected to religious conservatism than views about scientific authority.’” Moreover, just as Defending Pornography quoted some feminist scholars who explicated pornography’s positive impacts specifically for women, Judge Ezra quoted recent feminist scholarship in the same vein. [see Free Speech Coalition, Inc. et al v. Colmenero (W.D. Tex. 2023)] 

Recent Assaults on Sexual Expression

To illustrate the ongoing efforts to censor sexual expression since this book’s prior reissue, I will list some additional examples, beyond those I have already noted. In most of these situations, the stigmatizing term pornography has been deployed against the targeted material to convey the view that it lacks value and, even worse, is harmful to individuals and society. Following the pattern of earlier eras, some of these censorial efforts are supported mostly by people on the left, others supported mostly by people on the right, and still others receiving broad support from across the political spectrum.

• In addition to suppressing sexual expression in public and school libraries, some state legislation has also suppressed such expression in bookstores. For example, a 2022 Arkansas law made it a crime for a bookseller or a library to make any books “available” to minors that could be deemed “harmful” to them. Given the law’s severe penalties, it was clearly designed to deter booksellers and librarians from making any books with any sexual content available to minors. As a practical matter, considering the difficulties of enforcing such restrictions to minors only, these laws will also impede adults’ access to the same material.
• A 2023 Arkansas statute empowers anyone who claims to be “affected by” any material in a library’s collection to “challenge the appropriateness” of such material, without defining “appropriateness.” The executive director of the Garland County, Arkansas Library reported that, pursuant to this sweeping provision, his library had received a “blanket request” to remove “all materials with LGBTQ+ characters.”
• Even mere nudity has been the basis for removing books and artworks from public schools and other public settings, even when the nudity is a minor element of the work and the work has serious value. Perhaps the most notorious case in point is Art Spiegelman’s Pulitzer Prize-winning graphic novel Maus, which depicts the horrors of the Holocaust. Maus has been repeatedly removed from public schools due to one small cartoon drawing of a naked woman in a bathtub, in which her breasts and legs are visible above the water. This drawing depicts Spiegelman’s mother after she had committed suicide.
• In July 2023, the US House of Representatives passed a proposal to block military schools from purchasing or having “pornographic and radical gender ideology books” in their libraries.
• Legislation in multiple states has banned “drag” performances, using broad, vague language that encompasses any cross-dressing, even without sexual connotations. These laws therefore endanger wide-ranging artistic expression, including, for example, the plays of William Shakespeare. As author Charles P. Pierce commented in a 2023 essay, “Shakespeare is just collateral damage for transphobic laws against drag shows.”
• Multiple state laws have imposed age verification requirements for accessing online sites with sexual content. Because these measures invade privacy, they deter adults, as well as minors, from accessing constitutionally protected expression. In his 2023 decision striking down Texas’s age verification law, federal judge David Alan Ezra explained that the law’s deterrent effect “is particularly acute because access to sexual material could reveal intimate desires and preferences.” Noting that Texas still has not repealed its criminal “anti-sodomy” law, despite the Supreme Court’s 2003 decision invalidating it, Judge Ezra concluded: “Given Texas’s ongoing criminalization of homosexual intercourse, it is apparent that people who wish to view homosexual material will be profoundly chilled from doing so if they must first affirmatively identify themselves to the state.”
• Overly broad concepts of punishable sexual harassment have been enforced either formally, through means such as campus regulations, or informally, through campaigns such as the #MeToo movement. As Defending Pornography stressed, sexual harassment is indeed a type of illegal sex discrimination, but the key goal of countering such discrimination is undermined by falsely equating sexual expression with sexist conduct.

This double distortion wrongly conflates not only expression with conduct, but also sexuality with sexism, despite the Supreme Court’s clear warning to the contrary. In a unanimous 1998 decision (which was joined by the Court’s two female justices at the time, Sandra Day O’Connor and Ruth Bader Ginsburg), the Court explained that Title VII, the federal statute that outlaws gender-based discrimination in the workplace, “does not prohibit all verbal or physical harassment in the workplace,” but only such harassment that constitutes “discriminat[ion] . . . because of . . . sex.” The Court stressed that even harassing expression doesn’t “automatically” constitute “discrimination because of sex merely because the words used have sexual content or connotations.” On campus, though, it is precisely this wrongheaded equation between sexually themed words and sex discrimination that has instigated sexual harassment investigations and even punishments — including of women and feminist faculty members — simply for their nonviolent expression about sex or gender with which complainants disagree.

Likewise, some participants in the #MeToo movement have failed to sufficiently distinguish those convicted of serial rape (such as Harvey Weinstein) from those accused of misogynistic or insensitive expression (such as Al Franken), and have accordingly subjected the latter to disproportionately harsh punishment. In 2018, one hundred prominent French women, including the film star Catherine Deneuve, published a column in the leading French newspaper Le Monde, complaining that the #MeToo movement and its French counterpart “put on exactly the same level as sexual aggressors” men whose “only wrong was to have . . . talked about ‘intimate’ things at a professional dinner or sent messages with sexual connotations to women in whom the attraction was not reciprocated.” This letter also complained that #MeToo violated the free speech rights not only of men who had allegedly engaged in inappropriate sexual expression, but also women who critiqued such excesses. It stated:

Following the Weinstein affair, there was a legitimate awareness of sexual violence against women, especially in the workplace, where some men abuse their power. It was necessary. But this freedom of speech today turns into its opposite: we are told to speak properly, to silence what is upsetting, and those who refuse to comply . . . are regarded as traitors, accomplices!

Related

• Nadine Strossen Addresses 2015 FIRE Student Network Conference

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Forthcoming scholarly article on tort liability for harm to police from protests

• Ellen Bublick and Jane Bambauer, “Tort Liability for Physical Harm to Police Arising From Protest: Common-Law Principles for a Politicized World,” DePaul Law Review (forthcoming)

When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values — on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts to overturn the results of the U.S. presidential election. In the other, a Baton Rouge police officer suffered traumatic brain injury when he was hit by an object thrown by an unidentified protester during a Black Lives Matter protest that sought to block a highway in front of police headquarters. 

In this article, Professors Bublick and Bambauer argue that courts analyzing common-law liability claims for physical injuries suffered by police in the highly political circumstances of protest, would be well-advised to work through a list of content-neutral questions. Such a list could help courts maximize states’ legitimate interests in officer safety, while minimizing impacts on protestors’ legitimate First Amendment activity. We juxtapose these political contexts to create an analytical framework that recognizes the threats involved, to both speech and safety, without as great a risk of ideological distortion. Courts in both the January 6th case and the Black Lives Matter case have failed to accommodate both physical safety interests and First Amendment issues.

First Amendment Watch Q&A with Laura Handman

• Susanna Granieri, “Attorney Laura Handman on Defending the New York Post with the Fair Report Privilege,” First Amendment Watch (March 25)

The New York Post and one of its reporters, Isabel Vincent, prevailed this month in a defamation lawsuit filed by Silicon Valley billionaire Michael Goguen.

Goguen, who lives in Montana, sued the Post and Vincent, as well as retired Whitefish, Montana police chief, Bill Dial, in November 2021. The suit followed an article by Vincent that reported on civil court filings containing an allegation that Goguen “kept [a] spreadsheet of 5,000 women he had sex with.” Goguen called the article “ridiculous and defamatory” and later claimed that it “soiled” his reputation. He also alleged that the Post failed to investigate the claims in court documents that were included in the article, and that the newspaper published the article before receiving a comment from him.

The Post argued that the allegations contained in the article were protected under the fair report privilege, which shields news outlets from legal action when publishing fair and true reports of official government proceedings. The Post’s motion to dismiss was denied, and the lower district court found that Montana’s fair report privilege — which has conditions — rather than New York’s — which provides broader protections — was applicable to the case, requiring a jury to decide if the Post’s reporting about Goguen constituted “a true and fair report absent malice.”

The Post appealed the decision to the Montana Supreme Court, which ruled unanimously on March 12 that the Post was protected by New York’s fair report privilege and “that the disputed statements fairly and accurately report on an official proceeding.” It added that the lower court “erred in its choice of laws analysis when it did not conclude that New York had the most significant interest in having its fair report privilege applied to the proceedings.”

First Amendment Watch spoke with Vincent’s attorney Laura Handman about the case. Handman discussed the differences between Montana and New York’s fair report privileges, the importance of being able to report on official proceedings, and the significance of the Montana Supreme Court’s decision on future litigation.

‘So to Speak’ podcast: ‘Is money speech?’

• “‘Is money speech?’ with Robert Breedlove,” FIRE (March 25)

There is a recurring debate in the free speech community regarding whether money is speech.

Bitcoin-focused entrepreneur, writer, and philosopher Robert Breedlove joins us today to help resolve the debate. Describing money as "the language of human action," Robert makes the case that money, like the cryptocurrency Bitcoin, is information and should be free from government regulation and manipulation. During this longer-than-usual episode, Robert and Nico discuss everything from Keynesian economics and 3D-printed firearms to the Chinese Communist Party.

Robert is the host of the popular podcast, "The 'What is Money?' Show," which dives into the nature of money by asking guests one simple question: What is money? In 2020, he co-authored the book, “Thank God for Bitcoin: The Creation, Corruption and Redemption of Money.”

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British high court ruling on Julian Assange

March 26, 2024 — This morning in London, the UK’s High Court ruled on Julian Assange’s request to appeal his extradition to the United States. The ruling delayed Assange’s extradition, but only to allow the U.S. government to give assurances as to how Julian would be treated (in court and in prison) if he were extradited.

Assange’s Defense convened a panel of experts to discuss the ruling, what it means, and what comes next:

• Marjorie Cohn, former president of the National Lawyers Guild and columnist at Truthout
• Stephen Rohde, constitutional lawyer and author
• Chip Gibbons of Defending Rights & Dissent, who covered Assange hearings for Jacobin
• Kevin Gosztola, journalist and author of “Guilty of Journalism: The Political Case Against Julian Assange”

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More in the news

• “UK Court Says Assange Can’t Be Extradited on Espionage Charges Until US Rules Out Death Penalty,” First Amendment Watch (March 26)
• Eugene Volokh, “Inventing Anna Defamation Case Against Netflix Can Go Forward,” The Volokh Conspiracy (March 26)
• “Gag Order Bars Trump From Commenting on Key Figures in Hush Money Case,” First Amendment Watch (March 26)
• Jim Lindgren, “Abridging, Not Coercing, Is The First Amendment's Yardstick for Speech Violations,” The Volokh Conspiracy (March 25)
• Kevin McGill, “Requiring ugly images of smoking’s harm on cigarettes won’t breach First Amendment, court says,” Free Speech Center (March 24)

2023-2024 SCOTUS term: Free expression and related cases

Cases Decided

• McKesson v. Doe (Per Curiam: 7-1 with Thomas, J., dissenting: “[W]e conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law — one laden with value judgments and fraught with implications for First Amendment rights — without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court. We ex- press no opinion on the propriety of the Fifth Circuit certifying or resolving on its own any other issues of state law that the parties may raise on remand. We therefore grant the petition for writ of certiorari, vacate the judgment of the United States Court of Appeals for the Fifth Circuit, and remand the case to that court for further proceedings consistent with this opinion.”)

Review granted

• Vidal v. Elster (argued Nov. 1)
• O’Connor-Ratcliff v. Garnier (argued Oct. 31)
• Moody v. NetChoice, LLC & NetChoice, LLC v. Paxton  (argued: Feb. 26)
• National Rifle Association of America v. Vullo (argument: March 18)
• Murthy v Missouri (argument: March 18)
• Speech First, Inc. v. Sands (certiorari granted, judgment re. the bias policy claims vacated, and case remanded to the Court of Appeals for the 4th Circuit with instructions to dismiss those claims as moot) (Thomas and Alito, dissenting)
• Gonzalez v. Trevino (argued March 20)

Pending petitions

• Frank v. Lee
• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu
• Mckesson v. Doe 
• Pierre v. Attorney Grievance Commission of Maryland
• O’Handley v. Weber

State action

• Lindke v. Freed (Barrett, J., 9-0: “The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.”)
• O’Connor-Ratcliff v. Garnier (Per Curiam: 9-0: “We granted certiorari in this case and in Lindke v. Freed (2024), to resolve a Circuit split about how to identify state action in the context of public officials using social media. Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.”)

Review denied

• Brokamp v. James
• Griffin v. HM Florida-ORL (application for stay denied)
• M. C. v. Indiana Department of Child Services
• Spectrum et al v. Wendler
• Porter v. Martinez
• Molina v. Book
• Porter v. Board of Trustees of North Carolina State University
• NetChoice, LLC v. Moody
• Alaska v. Alaska State Employees Association
• X Corp. v. Garland
• Tingley v. Ferguson (Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (separate opinion) Justice Alito, dissenting from the denial of certiorari. (separate opinion))
• Jarrett v. Service Employees International Union Local 503, et al
• Sharpe v. Winterville Police Dept.
• Winterville Police Department v. Sharpe
• Stein v. People for the Ethical Treatment of Animals, Inc., et al.
• Blankenship v. NBCUniversal, LLC
• Center for Medical Progress v. National Abortion Federation
• Frese v. Formella
• Mazo v. Way

Free speech related

• Miller v. United States (pending) (statutory interpretation of 18 U.S.C. § 1512(c) advocacy, lobbying and protest in connection with congressional proceedings) // See also Fischer v. United States (to be argued April 16)
• In re: First Choice Women's Resource Centers, Inc. (whether a section 1983 suit to enjoin an unlawful investigatory demand by a state official is ripe)

Previous regularly scheduled FAN

FAN 416: “New and forthcoming books on culture wars, dissent, outspoken immigrant radicals, book bans, ‘show biz’ censorship . . . and more!”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.