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Regulation of Hate Speech and Pornography after R.A.V.Author(s): Elena KaganSource: The University of Chicago Law Review, Vol. 60, No. 3/4 (Summer - Autumn, 1993),pp. 873-902

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Regulation of Hate Speech andPornography After R.A.V.Elena Kagant

This Essay on the regulation of hate speech and pornographyaddresses both practicalities and principles. I take it as a giventhat we live in a society marred by racial and gender inequality,that certain forms of speech perpetuate and promote this inequal-ity, and that the uncoerceddisappearanceof such speech would because for great elation. I do not take it as a given that all govern-mental efforts to regulate such speech thus accord with the Consti-tution. What is more (and perhaps what is more important), theSupreme Court does not, and will not in the foreseeable future,take this latter propositionas a given either. If confirmationof thispoint were needed, it came last year in the shape of the Court'sopinion in R.A.V. v City of St. Paul.' There, the Court struckdown a so-called hate speech ordinance, in the process reiterating,in yet strengthened form, the tenet that the First Amendment pre-sumptively prohibits the regulation of speech based upon its con-tent, and especially upon its viewpoint. That decision demands achange in the nature of the debate on pornography and hatespeech regulation. It does so for principled reasons-because itraises important and valid questions about which approaches tothe regulation of hate speech and pornography properly shouldsucceed in the courts. And it does so for purely pragmatic rea-sons-because it makes clear that certain approachesalmost surelywill not succeed.In making this claim, I do not mean to suggest that all effortsto regulate pornography and hate speech be suspended, on the

t Assistant Professor of Law, The University of ChicagoLaw School. This Essay isbased on remarksI made in a panel discussion at the conference,"Speech,Equality,andHarm: Feminist Legal Perspectiveson Pornographyand Hate Propaganda,"held at TheUniversity of ChicagoLaw School on March5-7, 1993. The argumenthas been expandedonly slightly, and the reader is asked to make allowancesfor my necessarilyabbreviateddiscussionof many complicated ssues. I am gratefulto MaryBecker,LarryLessig,MichaelMcConnell,GeoffreyStone, David Strauss,and Cass Sunsteinfor valuableadviceand com-ments. The Classof '64 Fund and the Russell ParsonsFacultyResearchFund at The Uni-versity of ChicagoLaw School providedfinancialsupport.1 112 S Ct 2538 (1992).

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The University of ChicagoLaw Reviewgroundeither of mistake or of futility. Quite the opposite. R.A.V.largelyforecloses some lines of advocacyand argument(until nowthe dominant lines), as well perhaps it should have. But the deci-sion leaves open alternative means of regulatingsome pornographyand hate speech, or of alleviating the harms that such speechcauses.The primarypurposeof this Essay is to offersome of thesepotential new approachesfor consideration and debate. The ques-tion I pose is whether there are ways to achieve at least some ofthe goals of the anti-pornography nd anti-hate speech movementswithout encroachingon valuable and ever morefirmlysettled FirstAmendmentprinciples.This Essay is just that-an essay, a seriesof trial balloons, which may be shot down, from either side or noside at all, by me or by others. The point throughoutis to empha-size the range of approachesremainingavailableafter R.A.V. andmeritingdiscussion.

I. THE PROBLEMF VIEWPOINTISCRIMINATIONIn R.A.V., the Court struck down a local ordinance construed

to prohibit those fighting words, but only those fighting words,based on race, color, creed, religion, or gender.2Fighting wordslong have been considered unprotected expression-so valuelessand so harmful that governmentmay prohibitthem entirelywith-out abridging the First Amendment.3Why, then, was the ordi-nance before the Courtconstitutionallyinvalid?The majorityrea-soned that the ordinance's fatal flaw lay in its incorporationof akind of content-baseddistinction. The ordinance,on its very face,distinguished among fighting words on the basis of their subjectmatter:only fightingwordsconcerning"race,color, creed, religionor gender"were forbidden.4More, and much more nefariouslyinthe Court'sview, the ordinancein practice discriminatedbetweendifferent viewpoints: it effectively prohibited racist and sexistfightingwords,while allowingall others.5Antipathyto such view-point distinctions,the Courtstated, lies at the heart of the guaran-tee of freedom of expression. "The governmentmay not regulate[speech]based on hostility-or favoritism-towards the underlying

2 Id at 2542. The Supreme Court defined "fighting words" in Chaplinsky v New Hamp-shire, 315 US 568, 572 (1942), as words "which by their very utterance inflict injury or tendto incite an immediate breach of the peace."3 Chaplinsky, 315 US at 572.4 R.A.V., 112 S Ct at 2541, 2547.6 Id at 2547-48.

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RegulationAfterR.A.V.message expressed"; it may not suppress or handicap "particularideas."6

The reasoning in R.A.V. closely resembles that found in thekey judicial decision on the regulation of pornography.In Ameri-can Booksellers Ass'n, Inc. v Hudnut,7 affirmedsummarilyby theSupreme Court, the United States Court of Appeals for the Sev-enth Circuit invalidated the Indianapolis anti-pornographyordi-nance drafted by Andrea Dworkin and Catharine MacKinnon.That ordinance declaredpornographya form of sex discrimination,with pornographydefined as "the graphicsexually explicit subordi-nation of women, whether in pictures or in words,"that depictedwomen in specified sexually subservient postures.8The core prob-lem for the Seventh Circuit, as for the Supreme Court in R.A.V.,was one of viewpoint discrimination. The ordinance, accordingtothe Court of Appeals, made the legality of expression"depend[ent]on the perspective the author adopts."9Sexually explicit speechportraying women as equal was lawful; sexually explicit speechportrayingwomen as subordinate was not. The ordinance,in otherwords, "establishe[d] an 'approved'view" of women and of sexualrelations.10 From this feature, invalidation necessarily followed:"The state may not ordain preferredviewpoints in this way. TheConstitution forbids the state to declare one perspective right andsilence opponents."1'The approachused in R.A.V. and Hudnut has a large body ofcase law behind it. The presumptionagainst viewpoint discrimina-tion did not emerge alongside of, or in response to, the effort tocurtail certain forms of racist and sexist expression. Rather, thatpresumption long has occupied a central position in First Amend-ment doctrine. Decades ago, for example, the Supreme Court em-ployed the presumption to strike down laws restricting expressionthat discredited the military or that presented adultery in afavorablelight, and more recently, the Court invokedthe presump-tion to invalidate flag-burningstatutes.l2 This is not to say thatthe Court invariably has invalidated laws that incorporateview-

6 Id at 2545, 2549.7 771 F2d 323 (7th Cir 1985),affd mem, 475 US 1001 (1986).8 Id at 324.9 Id at 328.'0 Id.n Id at 325.l2 See Schacht v United States, 398US 58, 67 (1970)(military);KingsleyInt'l PicturesCorp.v Regents, 360 US 684, 688 (1959) (adultery);Texas v Johnson, 491 US 397, 416-17(1989) (flag-burning);United States v Eichman, 496 US 310, 317-18 (1990) (same).

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876 The University of ChicagoLaw Review [60:873point favoritism.Exceptions to the rule exist, althoughthe Courtrarely has seen fit to acknowledgethem as such; in a number ofareas of First Amendment law (and especiallywhen so-called low-value speech is implicated), the Court breezily has ignored bothmore and less obvious forms of viewpoint preference.13 till, therule has been moreoften honored than honoredin the breach,andthe SupremeCourt'sopinion in R.A.V.,as well as its summaryaf-firmance of Hudnut, could have been expected.Moreover,the Court'sdecision in R.A.V. entrenched still fur-ther the presumptionagainst viewpoint-basedregulationof speech.To be sure, the majority opinionreceivedonly five votes and cameunder vehement attack from the remainingJustices.14Thus, somemight reason that the disposition of the case reveals a weakeningin the Court's commitment to viewpoint neutrality, either acrossthe board or with respect to racist and sexist expression.If thisreasoningwere valid, those dislikingR.A.V. might simply wait andpray for an advantageouschange in the Court'smembership.Butany such reading of the case rests on a grave misunderstanding.The Court'sopinion received the support of only a bare majoritybecause, for two reasons having nothing to do with the particularviewpoint involved, the case appearedto some Justices not to in-voke the presumption against viewpoint regulation at all. First,

13 Several examples of this blindness to viewpoint discrimination occur in the area ofcommercial speech. See Posadas de Puerto Rico Associates v Tourism Co. of Puerto Rico,478 US 328, 330-31 (1986) (upholding a law prohibiting advertising of casino gambling, butleaving untouched all speech discouraging such gambling); Central Hudson Gas & Electric vPublic Service Commission, 447 US 557, 569-71 (1980) (striking down a broad law prohibit-ing advertising to stimulate the use of electricity, but suggesting that a more narrowly-tai-lored law along the same lines would meet constitutional standards, even if the law were toallow all expression discouraging use of electricity). In addition, as Catharine MacKinnonhas noted, the delineation of entire low-value categories of speech, such as obscenity andchild pornography, may be thought to reflect a kind of viewpoint discrimination, given thatthe speech falling within such categories likely expresses a single (disfavored) viewpointabout sexual matters. See Catharine A. MacKinnon, Feminism Unmodified: Discourses onLife and Law 212 (Harvard, 1987). Further discussion of this point, and its relevance for theregulation of pornography and hate speech, appears in note 73 and the text accompanyingnote 80. Finally, the Court has indicated that the usual presumption against viewpoint dis-crimination does not apply, or at least does not apply in full force, when the governmentengages in selective funding of speech, rather than selective restriction of speech. See Rust vSullivan, 111 S Ct 1759, 1772-73 (1991); text accompanying notes 28-29.'1 The four Justices who refused to join the Court's opinion also voted to invalidate theSt. Paul ordinance, but only because of a concern about overbreadth that easily could havebeen corrected. They assailed the majority's conclusion that the presumption against view-point discrimination mandated invalidation of the statute, either on the view that the pre-sumption failed to operate in spheres of unprotected speech, see 112 S Ct at 2551-54 (Whiteconcurring) and id at 2560 (Blackmun concurring), or on the view that the ordinance incor-porated no viewpoint-based distinction, see id at 2570-71 (Stevens concurring).

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Regulation After R.A.V.and most important, the alleged viewpoint discrimination in thecase occurred within a category of speech-fighting words-thatthe Court long ago declared constitutionally unprotected. Second,the viewpoint discriminationfound in the ordinanceexisted not onits face, but only in application-and even in application, onlywith a fair bit of argument.15 Had the law distinguished on its facebetween racist (or sexist) speech and other speech outside the cate-gory of fighting words, the Court's decision likely would have beenunanimous.l6What R.A.V. shows, then, is the depth, not the tenu-ousness, of the Court's commitment to a viewpoint neutrality prin-ciple. And what R.A.V. did, in applying that principle to a case ofnon-facial discrimination in an unprotected sphere, was to renderthat principle even stronger.Any attempt to regulate pornographyor hate speech-or atleast any attempt standing a chance of success-must take into ac-count these facts (the "is," regardless whether the "ought") ofFirst Amendment doctrine. A law specifically disfavoringracist orsexist speech (or, to use another construction,a law distinguishingbetween depictions of group members as equal and depictions ofgroup members as subordinate) runs headlong into the longstand-ing, and newly revivified,principleof viewpoint neutrality. I do notclaim that exceptions to this principle will never be made, or eventhat such exceptions will not be made by the current Court.Excep-tions, as noted previously,have been recognizedbefore (even if notexplicitly); they doubtless will be recognized again;and in the lastsection of this Essay, I consider brieflywhether and how to framethem. I do claim that given the current strength of the viewpointneutrality principle, a purely pragmatic approach to regulatinghate speech and pornographywould seek to use laws not subject tothe viewpoint discrimination objection, while also seeking to jus-tify-as exceptions-carefully crafted and limited departuresfromthe rule against viewpoint regulation.

16 The St. Paul ordinance,on its face,discriminatedonly on the basisof subjectmatter,as the Court conceded. For the dispute on whetherthe ordinanceapplied in a viewpoint-discriminatorymanner,contrastthe majorityopinion,112S Ct at 2547-48,with the concur-ringopinionof Justice Stevens, id at 2570-71.Contrastalso Cass R. Sunstein,OnAnalogicalReasoning, 106 Harv L Rev 741, 762-63 & n 78 (1993) (R.A.V. ordinancenot viewpoint-based in practice), with Elena Kagan, The Changing Faces of First Amendment Neutrality:R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion, 1992S Ct Rev 29, 69-71 (R.A.V.ordinanceviewpoint-based n practice).16 See note 14 for a descriptionof the concurringJustices' objectionsto the Court'sdecision.In the case hypothesizedin the text, those objectionswould have evaporated.

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The University of ChicagoLaw ReviewThis approach,in my view, also best accordswith importantfree speech principles(the "ought" n the "is"of First Amendmentdoctrine). A focus on the feasible is arguablyirresponsible f thefeasible falls desperately short of the proper. But here, I think,that is not the case. If reality-the currentstate of First Amend-ment doctrine-counsels certain proposalsand not others, certainlines of argumentand not others, so too do importantvalues em-bodied in that doctrine. More specifically, the principle of view-point neutrality,which now stands as the primarybarrier to cer-tain modes of regulating pornographyand hate speech, has at its

core much good sense and reason.Althoughhere I can do no morethan touch on the issue, my view is that effortsto regulatepornog-raphyand hate speech not only will fail, but also should fail to theextent that they trivialize or subvert this principle.Those who have criticized the courts for using the viewpointneutrality principleagainsteffortsto regulatepornographyor hatespeech usuallyhave offered one of two arguments.First, some haveclaimed that such effortscomportwith the norm of viewpointneu-trality because they are based on the harm the speech causes,ratherthan the viewpointit espouses.17 econd,and more dramati-cally, some have challengedthe norm itself as incoherent,worth-less, or dangerous.l8Both lines of argumenthave enriched discus-sion of the viewpoint neutrality principle, by challenging thetendency of such discussion to do nothing more than apotheosize.Yet both approaches,in somewhat different ways, slight the rea-sons and values underlying current First Amendment doc-trine-including the decisions in R.A.V. and Hudnut.The claim that pornographyand hate-speech regulation isharm-based, rather than viewpoint-based,has an initial appeal,but turns out to raisemanyhardquestions.The claimappealspre-cisely because it reflects an understandingof the value of a view-

17 See, for example, Cass R. Sunstein, Pornography and the First Amendment, 1986Duke L J 589, 612; MacKinnon, Feminism Unmodified at 212 (cited in note 13). See alsoR.A.V., 112 S Ct at 2570 (Stevens concurring). Professor Sunstein always has combined thisargument with a fuller analysis of when exceptions to the viewpoint regulation doctrine arejustified; for him, the ability to classify a law as harm-based seems not the end, but only thestart of the inquiry. See Cass R. Sunstein, Words, Conduct, Caste, 60 U Chi L Rev 795, 796(1993) (in this issue). My brief discussion, in Section II of this Essay, on whether and whento recognize such exceptions owes much to his work on the subject.18 See Mary Becker, Conservative Free Speech and the Uneasy Case for Judicial Re-view, 64 U Colo L Rev 975, 1044-47 (1993) (arguing that a viewpoint neutrality norm harmswomen and minority groups); MacKinnon, Feminism Unmodified at 210-13 (cited in note13) (challenging the ability to identify viewpoint regulation except by reference to socialconsensus).

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Regulation After R.A.V.point neutrality norm and a desire to maintain it: if pornographyand hate-speech regulation is harm-based,then we can have bothit and a rule against viewpoint discrimination.19But the two yearn-ings may not be so easy to accommodate,for it is not clear that theclassification proposed can support much weight. It is true thatstatutory language can focus either on the viewpoint of speech oron the injury it causes: contrast an ordinance that prohibits "sexu-ally explicit materialsapprovingthe subordinationof women"withan ordinancethat prohibits "sexually explicit materialscausingthesubordinationof women."20But if we assume (as a meaningfulsys-tem of free speech must) that speech has effects-that the expres-sion of a view will often cause people to act on it-then the twophrasings should be considered identical for First Amendmentpurposes. To grasp this point, consider here a few further exam-ples. Contrast a law that prohibits criticism of the draft with a lawthat prohibits any speech that might cause persons to resist thedraft.2'Or, to use a case with more contemporaryresonance, con-trast an ordinance punishing abortion advocacy and counselingwith an ordinance punishing any speech that might induce awoman to get an abortion. To sever these pairs of statutes wouldbe to transform the First Amendment into a formal rule of legisla-tive drafting, concerned only with appearance. In all these cases,the facially harm-based statute and the facially viewpoint-basedstatute function in the same way, because it is speech of a certainviewpoint, and only of that viewpoint, which causes the alleged in-jury. The facially harm-based statute in these circumstances willcurtail expression of a particularmessage as surely as will the stat-ute that refers to the message in explicit language.Given this func-tional identity, the statutes properly are viewed as cognates.22

19 I suspect that a wish of this kind explainsJustice Stevens's insistencein R.A.V.thatthe St. Paul ordinanceregulated speech "not on the basis of ... the viewpoint expressed,but ratheron the basis of the harm the speech causes."112 S Ct at 2570 (Stevens concur-ring). Both in R.A.V. and in numerous other opinionsand articles,Justice Stevens has ex-pressed unwavering upportfor the presumptionagainst viewpointregulation.For the mostrecent example, see The Hon. John Paul Stevens, The Freedomof Speech, 102 Yale L J1293, 1309 (1993).20 The example,in slightly differentform,appearsin GeoffreyR. Stone, Anti-Pornog-raphy Legislationas Viewpoint-Discrimination, Harv J L & Pub Pol 461, 467 (1986).AsStone points out, the MacKinnon-Dworkinrdinance,as written,is at any ratecloserto thelaw focusingon the viewpoint espoused than to the law focusingon the harmcaused. Id.

21 This examplealso appearsin Stone. Id.22 An argumentto the contrarymight rely not on the effects of the statutes, but on theintent of the legislaturein passing them. The claim here would be that the faciallyharm-based statute more likely springs from a legitimate governmentalmotive than does thefacially viewpoint-basedstatute. But this claim seems dubious in any case in which the

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The University of ChicagoLaw ReviewThis equivalencedoes not by itself destroythe claimthat por-nographyregulation is harm-based,because both versions of thelaw might be characterized n this manner:so long as a legislaturereasonablydecides, as it surely could with respect to pornography,that speech causes harm,then regulationrespondingto that harm(however framed) might be consideredneutral, ratherthan an ef-fort to disfavor certain viewpoints. But this approach,too, makesany distinction between viewpoint-based regulation and harm-basedregulationcollapse upon itself. Using this analysis,almost allviewpoint-based regulation can be described as harm-based,re-

sponding neutrallynot to ideas as such, but to their practicalcon-sequences.For it is difficultto see why anyone would opt to regu-late a viewpointthat did not cause what seemed (to the regulatorsat least) to be a harm-or at a bare minimum,that could not rea-sonably be described as harmful. So, to return to the examplesused above, a law prohibiting criticism of the draft could betermed harm-basedgiven that such speech in fact producesdraftresistance;or a law prohibitingabortioncounselingand advocacycould be termed harm-based given that such speech in fact in-creases the incidence of abortion (whichmany would count a seri-ous injury). The substitution of labels-"harm-based" for "view-point-based"-thus either allows most viewpoint regulationto goforward or leaves yet unansweredthe central issue of preciselywhen such regulationis appropriate.The more extreme critique of a case like Hudnut-that view-point discriminationdoctrine is both incoherent and corrupt-is inmany ways more difficult to counter. This critique rebels againstthe very core of First Amendmentdoctrine by acceptingthe gov-ernment's power to suppress viewpoints as such whenever theviewpoints are thought to cause some requisite harm.23But thejustificationfor this position includesat least one extremely potentpoint: that recognizing viewpoint regulation may well depend onthe decisionmaker'sviewpoint; more specifically, that a judicial

statutes in fact operate in a similar manner. Because the legislators will know that thefacially harm-based statute, like the facially viewpoint-based statute, will succeed in cur-tailing a specific message, their decision to phrase the statute in terms of harm (especially inlight of a legal rule that effectively counsels them to do so) cannot provide a guarantee oflegitimate intent.23 See MacKinnon, Feminism Unmodified at 212-13 (cited in note 13). Even under cur-rent First Amendment doctrine, the government may engage in viewpoint discrimination inemergency circumstances amounting to something like a clear and present danger. The cri-tique discussed in the text would allow viewpoint regulation on a much less stringentshowing.

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Regulation After R.A.V.decisionmaker will be least likely to recognize (or count as rele-vant) viewpoint regulation when the regulator's viewpoint lines upwith his own.24This phenomenon may explain in part the willing-ness of courts to accept anti-obscenity laws at the same time asthey strike down anti-pornography laws.25 More generally, thisepistemological problem may skew viewpoint discrimination doc-trine, as it operates in practice, in favor of the status quo-result-ing in the disproportionate approval of laws most reflective oftraditional sentiment and the disproportionate nvalidation of lawsleast so.

But even assuming this is true, I doubt that the appropriateresponse lies in undermining, let alone eliminating, the viewpointdiscriminationprinciple. That principle growsout of two concerns,as meaningful today as ever in the past.26The first relates to theeffects of viewpoint discrimination: such action skews public de-bate on an issue by restrictingthe ability of one side (and one sideonly) to communicate a message.The second relates to governmen-tal purposes: viewpoint regulation often arises from hostility to-ward ideas as such, and this disapprovalconstitutes an illegitimatejustification for governmental action. Of course, particular in-stances of viewpoint discrimination may spring from benign pur-poses and have benign effects. Legislators may engage in viewpointdiscriminationin an effort not to suppress ideas, but to respond toreal harms;and the resulting damage to public discourse may sig-nify little when measured against the harms averted. But how arethe courts, or the people, or even legislators themselves to makethese determinationsof motive and effect in any given case? Will itnot always be true that a benign motive can be assigned to govern-mental action? Will not any judgment as to relative harms dependon an evaluation of the message affected? From these questions,relating to the difficulty of evaluating particular purposes and ef-fects, emerges a kind of rule-utilitarianjustification for the ban onviewpoint discrimination.The historic examples of the dangers of viewpoint discrimina-tion, on the counts of both purpose and effect, are well-known andlegion: the government's attempts, especially during World War I,to stifle criticism of military activities; its attempts in the 1950s to

24 See id at 212; Becker,64 U Colo L Rev at 1046-47(cited in note 18).25For discussion of the viewpointbias inherent in obscenitylaws,see notes 13 and 73and text accompanyingnote 80.26 The classic discussion of the bases for viewpointdiscriminationdoctrineis GeoffreyR. Stone, Content Regulation and the First Amendment, 25 Wm & Mary L Rev 189 (1983).

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The University of ChicagoLaw Reviewsuppress support of Communism; ts efforts, stretching over dec-ades, to prevent the burningof Americanflags as a means of pro-testing the governmentand its policies.27And if all these seem re-mote either from current threats or from the kind of viewpointregulationat issue in Hudnut and R.A.V.-if they seem the storiesof anothergeneration,with little relevance for today-consider in-stead the case of Rust v Sullivan,28previewed n earlierhypotheti-cals. There, the government favored anti-abortion speech overabortion advocacy,counseling, and referral,and the Court, to itsdiscredit, announced that because the selectivity occurredin thecontext of a governmental funding program, the presumptionagainst viewpointdiscriminationwas suspended.29Or instead con-sider the numerousways in which some of the strange bedfellowsof anti-pornographyeminists (and one must admit their presence)might choose (indeed, have chosen) to attack the expression of,among others, gays and lesbians.The key point here is only strengthenedby the insight thatviewpoint discriminationdoctrine, as applied by the courts, has away of producingsome patternedinconsistencies;or to put this an-other way, the very critique of the Court'sviewpoint discrimina-tion doctrineexposes the need for a viewpoint neutrality principle.For what the critique highlights is the tendency of governmentalactors (of all kinds) to see speech regulationthrough the lens oftheir own orthodoxies, as well as the ease with which suchorthodoxies can thereby become entrenched. Recognition of thisprocess lies at the very core of the viewpoint discriminationdoc-trine: as Justice Stevens recently has noted, that doctrine re-sponds, preeminently,to fear of the "impositionof an officialor-thodoxy,"30ven (orperhapsespecially)as to mattersinvolvingsexor race. That judicial decisionmakers,in applying the doctrine,sometimes will succumb to the views they hold hardly argues infavorof grantingcarte blanche to legislativedecisionmakers o bowto theirs. It is difficult to see how women and minorities,who havethe most to lose from the establishment of political orthodoxy,

27 See Akhil Reed Amar, The Supreme Court, 1991 Term-Comment: The Case of theMissingAmendments:R.A.V.v. Cityof St. Paul, 106 HarvL Rev 124(1992),for a compari-son of R.A.V.and the Court'smost recentflag-burningases,Texas v Johnson,491 US 397(1989), and United States v Eichman, 496 US 310 (1990).28 111 S Ct 1759 (1991).29 Id at 1771-73.For a comparisonof Rust and R.A.V.,see Kagan,1992S Ct Rev 29(cited in note 15).30 Stevens, 102 Yale L J at 1304(cited in note 19).

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Regulation After R.A.V.would gain by jettisoning the First Amendmentdoctrine that mostprotects against this prospect.

None of this discussion, of course, denies either the possibilityor the desirability of craftingcarefullycircumscribedexceptions toFirst Amendment norms of viewpoint neutrality, and in the lastsection of this Essay, I briefly consider whether and how this taskmight be accomplished. Perhaps more important,none of this dis-cussion gainsays the possibility of respondingto the harms of por-nography and hate speech through measures that do not contra-vene these norms. It is surely these measures, viewed from apragmatic perspective, that stand the best chance of succeeding.And it usually will be these measures that pose the least dangertofree speech principles. I turn, then, to a considerationof such pro-posals, less with the aim of making specific recommendationsthanwith the aim of injecting new questions into the debate on hatespeech and pornographyregulation.

II. NEW APPROACHESI canvass here four general approaches;each is capable of en-compassing many specific proposals. The four approaches are, inorder: (1) the enactment of new, or the stricter use of existing,bans on conduct; (2) the enactment of certain kinds of viewpoint-neutral speech restrictions; (3) the enhanced use of the constitu-tionally unprotected category of obscenity; and (4) the creation ofcarefully supported and limited exceptions to the general ruleagainst viewpoint discrimination. The proposals I outline withinthese approachesare meant to be illustrative, rather than exhaus-tive. Many fall well within constitutional boundaries;others test(or, with respect to the fourth approach, directly challenge) thecurrent parameters. The latter proposals raise hard questions re-lating to whether they (no less than the standard viewpoint-basedregulation) too greatly subvert principles necessary to a system offree expression.I will touch on many of these questions, althoughIcannot give them the extended treatment they merit.

A. ConductThe most obvious way to avoid First Amendment require-ments is to regulatenot speech, but conduct. Recently, some schol-

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The University of ChicagoLaw Reviewars have sought to meld these two together.31Speech is conduct,they say, becausespeech has consequences(speech,that is, "does"something); or conduct is speech because conduct has roots inideas (conduct, that is, "says"something). I use these terms in adifferent sense. When "conduct"becomesa synonymfor "speech"(or "speech" for "conduct"),the command of the First Amend-ment becomes incoherent;dependingon whetherthe paradigmofconduct or speech holds sway, governmentcan regulateeither al-most everything or almost nothing. The speech/conduct line ishard to draw, but it retains much meaning in theory, and evenmore in practice.When I say "conduct," hen, I mean acts that, inpurpose and function, are not primarilyexpressive.32The govern-ment can regulate such acts without running afoul of the FirstAmendment.33Here, I discuss two specifickinds of conductregula-tion: the continuedenactment and use of hate crimeslaws and theincreased application of legal sanctions for acts commonly per-formedin the making of pornography.The typical hate crimes law, as the Supreme Court unani-mously ruled last Term, presents no First Amendmentproblem.34Hate crimes laws, as usually written, providefor the enhancementof criminalpenalties when a specified crime (say, assault) is com-mitted becauseof the target'srace,religion,or other listed status.35These laws are best understood as targeting not speech, butacts-because they apply regardless whether the discriminatoryconduct at issue expresses,or is meant to express,any sort of mes-sage. In this way, hate crimes laws function precisely as do otherdiscrimination aws-for example, in the sphere of employment.36

31 See MacKinnon, Feminism Unmodified at 129-30, 193-94 (cited in note 13); CharlesR. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990Duke L J 431, 438-44.32 The approach, in focusing on expressive quality, is similar to the analysis that CassSunstein presents in these pages. See Words, Conduct, Caste, 60 U Chi L Rev at 807-09(cited in note 17). See also Amar, 106 Harv L Rev at 133-39 (cited in note 27). Of course, assketched here, the definition begs all kinds of questions about when acts, either in purposeor in function, are primarily expressive.33 So, for example, it goes without saying that the City of St. Paul could have pro-ceeded against the juvenile offenders in R.A.V. through the law of trespass. See R.A.V., 112S Ct at 2541 n 1 (listing other statutes under which the offenders could have beenpunished).S4 Wisconsin v Mitchell, 113 S Ct 2194 (1993).35 See, for example, Cal Penal Code ? 422.7 (West 1988 & Supp 1993); NY Penal Law? 240.30(3) (McKinney Supp 1993); Or Rev Stat ? 166.165(1)(a)(A) (1991); Wis Stat Ann? 939.645 (West Supp 1992).36 The Supreme Court in Mitchell noted the precise analogy between Title VII and thehate crimes statute at issue in the case. See 113 S Ct at 2200. It is noteworthy that both

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Regulation After R.A.V.When an employer fires an employee because she is black, the gov-ernment may impose sanctions without constitutional qualm. Thisis so even when the discharge is accomplished (as almost all dis-chargesare) through some form of expression,for whateverexpres-sion is involved is incidental both to the act accomplished and tothe government's decision to prevent it.37The analysis ought notchange when a person assaults another because she is black, onceagain even if the conduct (assault on the basis of race) is accompa-nied by expression. A penalty enhancement constitutionally mayfollow because it is pegged to an act-a racially-basedform of dis-advantage-that the state wishes to prevent, and has an interest inpreventing, irrespective of any expressive component. In otherwords, in the assault case, no less than in the discharge case, thegovernment decides to treat race-based acts differently from simi-lar non-race-based acts; and in the assault case, no less than in thedischarge case, this decision-a decision to prevent disproportion-ate harms from falling on members of a racial group-bears no re-lation to whether the race-based act communicates a message.Thus might end the constitutional analysis.Perhaps, however,this argument is not quite so easy as I havemade it out to be. It might be said, in response, that racially-basedassaults, more often than racially-baseddischarges,are committedin order to make a statement. If this is true, a penalty enhance-ment not only will restrict more speech incidentally, but also mayraise a concern that the governmentis acting for this very purpose.Or perhaps it might be said, more generally, that the use of a dis-criminatorymotive to define an act, even supposing the act has noexpressive component, at times may be highly relevant to FirstAmendment analysis: consider, for example, a penalty enhance-

laws apply not only irrespectiveof whetherthe discriminationat issue expressesa message,but also irrespectiveof whether the discrimination s caused by particularbeliefs. If, forexample, discriminationlaws prohibited discharges or assaults motivated by racial ha-tred-rather than simply based on race-they would pose a very different,and seeminglysevere,First Amendmentproblem.37 Cass Sunstein makes this point in Words,Conduct, Caste,60 U ChiL Rev at 827-28;his phrasing s that in such a case, the communication s merelyevidenceof, or a meansofcommitting,an independentlyunlawful act. ProfessorSunstein, however,appearsto thinkthat this analysisfails to cover hate crimes,because there the state's interestarisesfrom theexpressivenatureof the conduct.As stated in the text, I do not believe this to be the case.Astate has a legitimate interest in preventing,say, assaults on the basis of race, even whenthey are wholly devoid of expression.The interest is the same as the one in preventingdischargeson the basis of race; t is an interest in eradicatingracially-basedormsof disad-vantagegenerally,whetheror not accompaniedby communicationof a message.

1993] 885

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The University of ChicagoLaw Reviewment provision applicable to persons who obstruct voting on thebasis of a voter's affiliation with the RepublicanParty.

But both of these objectionsseem to falter on furtherconsid-erationof the nature of hate crimesregulationand the governmen-tal interest in it. The voting obstructionlaw I have hypothesized(no less than a hate crimes law) applies to conduct regardlessofwhether it has expressivecontent, but the government's nterest inthe law alwaysin a certainsense relates to expression: t is difficultto state, let alone give credence to, any interest the governmentcould have, other than favoringor disfavoringpoints of view, forspecially penalizingvoting obstructionbased on affiliationwith aparticularpolitical party.38 n the case of hate crimeslaws, by con-trast, the government not only is regulating acts irrespectiveoftheir expressive component,but also has a basis for doing so thatis unrelated to suppressing (or preferring)particularviews or ex-pression-the interest, once again, in preventingconceded harmsfrom falling inequitably on members of a particularracial group.In such a case, the regulationshould be found to accord with FirstAmendmentrequirements,notwithstandingthat it incidentallyaf-fects some expression.As the Courtin R.A.V. noted, in referring oemploymentdiscrimination aws, "Wherethe governmentdoes nottarget conducton the basis of its expressivecontent,"-and where,we might add, the government, n regulatingconduct,has a credi-ble interest that is unrelated to favoring or disfavoring certainideas or expression-"acts are not shielded from regulationmerelybecause they express a discriminatory dea or philosophy."S3In accordwith this reasoning,communitiesshould be able notonly to impose enhancedcriminalsanctionson the perpetratorsofhate crimes, but also to provide special tort-based or other civilremediesfor their victims. One of the accomplishmentsof the anti-pornographymovement has been to highlightthe benefits of usingthe civil, as well as the criminal, aws to deter and punish undesir-

38 The hypotheticalvotinglawmightseemverydifferent f enhancedpenalties appliedto obstructionbased on the voter'saffiliationwith any politicalparty,ratherthan with theRepublicanPartyalone.In enactingthis broader aw,the state couldhave determined hatit had an interest in protectingpersonsfromsufferingdisproportionate arm as a resultoftheir political views, analogous o the interestin protectingpersonsfromsufferingdispro-portionateharm as a resultof theirrace.Underthe analysissuggested n the text, this newvoting law wouldmeet constitutionalstandardsbecauseit applies regardlesswhether theconductcommunicates messageand because he governmentnowhas a credible nterestinthe law not relatedto favoringor disfavoringparticularviewpointsand messages.39112 S Ct at 2546-47.

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Regulation After R.A.V.able activity.40Civil actions involve fewer procedural safeguardsfor the defendant, including a much reduced standard of proof;asimportant, they may give greater control to the victim of the un-lawful conduct than a criminalprosecutionever can do. Communi-ties therefore should consider not merely the enactment of hatecrimes laws, but also the provision of some kind of "hate torts"remedies. And in determiningthe scope of all such laws, communi-ties should consider the manner in which the laws apply to crimesor civil violations committed on the basis of sex, which now oftenfall outside the compass of hate crimes statutes.To address the harms arising from pornography,the govern-ment has numerousavailable mechanismsthat regulatenot speech,but conduct. At an absolute minimum, states can prosecute ac-tively, under generally applicable criminallaws, the sexual assaultsand other violent acts so frequently committed against women inthe making of pornography.Similarly, as Judge Easterbrooksug-gested in Hudnut, states may specificallymake illegal (if they havenot already) the use of fraud, trickery,or force to induce people toperformin any films, without regardto viewpoint.41Extensive reg-ulation of such practices is the lot of many industries; the visualmedia surely are not entitled to any special exemption. With re-spect to regulatoryeffects of this kind too, responses based on thecriminal law can be supplemented by enhanced tort remedies.42A much more questionable means of deterringthe productionof pornographicworks would be to press into service laws regulat-ing prostitution, pimping, or pandering.In one recent case, an Ari-zona court upheld, against First Amendment challenge, the use ofprostitution and panderingstatutes against a womanwho managedand performedin a sex show.43The court reasoned,consistent withestablished First Amendment doctrine, that the prosecutionswere

40 See CatharineA. MacKinnon,Pornography,CivilRights, and Speech, 20 Harv CR-CL L Rev 1, 29 n 52 (1985).41 771 F2d at 332.42 For a discussionof whether the government, n additionto banningthe conduct it-self, may prohibitthe disseminationof speech producedby means of this unlawfulconduct,

see text accompanyingnotes 55-61.43Arizona v Taylor, 167 Ariz429, 808 P2d 314, 315-16 (1990).The state's prostitutionstatute prohibited"engaging n or agreeingor offeringto engage in sexual conduct withanotherpersonunder a fee arrangementwith that personor any otherperson."Id. The useof statutes of this kind againstwomen who merely perform n pornography aisesa specialconcern:such prosecutionsmake a criminal of the very victim of exploitative practices.Moreover, hese prosecutions may have little value:they are likely to deter the productionof pornographyar less well than prosecuting he actual pornographer nderpimping,pan-dering,or other similarstatutes,whichessentially prohibitthe hiringof personsto engageinsexual practices.

1993] 887

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The University of ChicagoLaw Reviewpermissiblebecause even if the show had expressive content, thestate had acted under statutes directedat conduct in order to fur-ther interests unrelated to the suppression of expression." Thesame argument could be made whenever the government actsagainst a pornographerunder a sufficientlybroadpimpingor pan-dering statute, so long as the prosecutionwere based on a signifi-cant interest unrelatedto speech, such as the preventionof sexualexploitation. The problem with this analysis lies in its potentialscope: many films that no one would deem pornographiccontainsexual conduct by hired actors and thus fall within the very samestatutes. Notwithstandingall I have said above, even the neutralapplicationof a law that is not itself about speech might in somecircumstancesviolate the First Amendment. (Consider,to use anextreme example,an environmental aw imposinga ban on cuttingdown trees, as applied to producersof books and newspapers.)Inall probability,the use of pimping and panderingstatutes in theway I have just considered suffers from this constitutionaldefect,given the potential for applyingsuch statutes to large amountsofspeech at the core of constitutionalprotection.Those favoring the direct regulation of pornographyoftenchargethat relyingexclusivelyon bans on conduct-most notably,a ban on coerced performances-would allow abuses currentlycommitted in the manufactureof pornography o continue.45Suchapproaches,even if determinedlyenforced,certainlywill have lesseffect than banning pornographyaltogether. But once again, themost sweepingstrategiesalso will be the ones most subjectto con-stitutional challenge and the ones most subversive of free speechprinciples.An increasedemphasis on conduct,rather than speech,provides a realistic, principled,and perhaps surprisinglyeffectivealternative.B. Viewpoint-NeutralRestrictions

The SupremeCourtoften has said that any speech restrictionbased on content, even if not based on viewpoint, presumptivelyviolates the First Amendment.46But rhetoric in this instance is44 Id at 317. The key case supporting this analysis is United States v O'Brien, 391 US367 (1968), in which the Court approved the use of a statute prohibiting any knowing de-struction of a Registration Certificate, purportedly enacted to further the efficient operationof the draft, against a person who had burned his draft card as part of a political protest.45 See, for example, Cass R. Sunstein, Neutrality in Constitutional Law (With SpecialReference to Pornography, Abortion, and Surrogacy), 92 Colum L Rev 1, 23-24 (1992).

46 See, for example, Police Department of Chicago v Mosley, 408 US 92, 95-96 (1972);Simon & Schuster, Inc. v Members of the New York State Crime Victims Board, 112 S Ct

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Regulation After R.A.V.semi-detached from reality. The Court,for example, sometimes hasupheld regulations based on the subject matter of speech.47Andthe Court in several cases has approved restrictions on non-ob-scene but sexually explicit or scatological speech.48Cases of thiskind raise the possibility of eradicating the worst of hate speechand pornography hrough statutes that, althoughbased on content,on their face (and, to the extent possible, as applied) have no view-point bias.One potential course is to enact legislation, or use existing leg-islation, prohibitingcarefully defined kinds of harassment,threats,or intimidation, including but not limited to those based on raceand sex. For example, in considering the St. Paul ordinance, theCourt in R.A.V. noted that the city could have achieved "preciselythe same beneficial effect" through "[a]n ordinance not limited tothe favoredtopics"49-that is, through an ordinanceprohibitingallfighting words, regardless whether based on race, sex, or otherspecified category.An ordinance of this kind would have presentedno constitutional issue at all given the Court'sprior holdings thatfighting words are a form of unprotected expression.50A lawprohibiting, in viewpoint-neutralterms, not merely fighting wordsbut other kinds of harassment and intimidation would (andshould) face greater constitutional difficulties, relating most nota-bly to overbreadthand vagueness; but a carefully drafted statutemight well surmount these hurdles, and such a law surely wouldnot be subject to the selectivity analysis of R.A.V. Viewpoint-neu-tral laws of this kind-whether framed in terms of fighting words

501, 508-09 (1991);Consolidated Edison Co. of New York v Public Service CommissionofNew York,447 US 530, 536 (1980).47 See, for example,Burson v Freeman, 112 S Ct 1846 (1992);Greer v Spock, 424 US828 (1976);CBS v Democratic National Committee,412 US 94 (1973).See generallyGeof-frey R. Stone, Restrictionsof Speech Because of its Content:The Peculiar Caseof Subject-Matter Restrictions,46 U Chi L Rev 81 (1978).R.A.V. might be thought to treat subjectmatter restrictionswith the same distrust shown to viewpoint restrictions:the technicalholdingof the Court was that the St. Paul ordinancefacially violatedthe Constitution"inthat it prohibitsotherwisepermitted speech solely on the basis of the subjectsthe speechaddresses."112 S Ct at 2542. But elsewherein the opinion,the Court made clearthat itstrue concernrelated to viewpointbias. What most botheredthe Courtwas that the subjectmatter restrictionoperated in practice to restrict speech of only particular(racist, sexist,etc.) views. See, for example,id at 2547-49.

48 See FCC v Pacifica Foundation, 438 US 726 (1978) (indecent radio broadcast);Youngv AmericanMini-Theatres, 427 US 50 (1976) ("adult"theaters);City of Renton vPlaytime Theatres,Inc., 475 US 41 (1986) (same).49 112 S Ct at 2550.50 See Chaplinskyv New Hampshire,315 US 568, 572 (1942).Of course,the applica-tion of the ordinanceto any particularexpressionmight well raise serious constitutionalissues relatingto the permissiblescope of the fightingwordscategory.

1993] 889

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The University of ChicagoLaw Reviewor in some other manner-might be especially appropriate n com-munities (such as, perhaps, educational institutions) whose verypurposes requirethe maintenance of a modicumof decency.6"Anotherapproach,relevantparticularly o pornography, ouldfocus on regulatingmaterials defined in terms of sexual violence.At first glance,R.A.V. and (especially)Hudnut seem to doom suchefforts,but this initial appearancemay be deceptive.The problemin Hudnut involved the way the ordinance under review distin-guished between materialspresentingwomenas sexual equals andmaterials presenting women as sexual subordinates: two works,both equally graphic,would receive differenttreatment becauseofdifferent viewpoints.62This problem, the court suggested, wouldnot arise if a statute instead were to classify materialsaccording otheir sexual explicitness.63 ndeed, the SupremeCourtalreadyhassaid as much by treating as non-viewpoint-based(and sometimesupholding) regulations directed at even non-obscene sexuallygraphic materials.64 f a regulation applying to sexually explicitmaterials does not raise concerns of viewpoint bias, perhapsneither does a regulation applyingto worksthat are both sexuallyexplicit and sexually violent.One counterargumentmight run that the referenceto sexualviolence in this hypothetical statute would function simply as acode word for a disfavored viewpoint: sexually violent materialspresentwomen as subordinates; exuallynon-violentmaterialspre-sent women as equals;hence, the law replicatesin covert languagethe faults of the MacKinnon-Dworkin rdinance.But this responsestrikes me as flawed, because many non-violent works presentwomen as sexual subordinates,and some violent materialsmay not(violenceis not necessarily a synonymfor non-equality).The ques-tion is by no means free from doubt-much depends on how farthe Court will or should go to find viewpoint discrimination n afacially neutral statute-but framing a statute along these linesseems worth consideration.

"1See RobertC. Post,Racist Speech,Democracy,and the First Amendment,32 Wm &MaryL Rev 267,317-25(1991),fora generaldiscussionof the compatibilityof speech regu-lation with the objectivesof highereducation.52 See 771 F2d at 328.63Id at 332-33.b4 See note 48 and accompanyingext. The Court has failedto indicatepreciselywhenregulationsof this kind, even assumingthey are not viewpoint-based,will meet constitu-tional standards.All of the regulationsupheld by the Courthave involved not completebans,but morelimited restrictions.A law foreclosing uch speech entirelywouldraisecon-stitutionalconcernsof greaterdimension.

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RegulationAfterR.A.V.Finally, and once again of particularrelevanceto pornography,the Constitution may well permit direct regulation of speech, if

phrased in a viewpoint-neutral manner, when the regulation re-sponds to a non-speech related interest in controlling conduct in-volved in the materials' manufacture. Assume here, as discussedabove, that the governmenthas a strong interest in regulatingtheviolence and coercionthat often occurs in the making of pornogra-phy.55Does it then follow that the governmentmay punish the dis-tribution of materials made in this way as well as the underlyingunlawful conduct? The Supreme Court's decision in New York vFerber56 uggests an affirmativeanswer. In Ferber, the Court sus-tained a statute prohibiting the distribution of any material de-picting a sexual performance by a child, primarilyon the groundthat the law arose from the government'sinterest in preventingtheconduct (sexual exploitation of children) necessarily involved inmaking the expression. Similarly, it would appear,the governmentmay prohibit directly the dissemination of any materials whosemanufacture involved coercionof, or violence against, participants.The Hudnut Courtspecifically indicated that such a statute wouldmeet constitutional requirements.57Important questions remain unanswered with respect to thisapproach, for there are almost surely limits on the principle thatthe government may engage in viewpoint-neutral regulation ofspeech whenever it has an interest in deterringconduct involved inproducing the expression. The principle itself, in addition to ex-plaining Ferber, may explain such disparate outcomes as the abil-ity of a court to enjoin the publication of stolen trade secrets andto award damages for the unapproved publication of copyrightedmaterial.58But some hypothetical applicationsof the principlesug-gest the need for a boundaryline. For example, could the govern-ment prohibit all speech whose manufacture involved violations ofthe Fair Labor Standards Act? Surely such a statute would violatethe Constitution. Or, to use another sort of case, could the govern-ment prohibit the distribution of all national security informationstolen from governmentagencies? An affirmativeanswer would re-quire overrulingthe Pentagon Papers case.59The question arises,

66 See text accompanying notes 41-42.56 458 US 747 (1982).67 See 771 F2d at 332-33.68 See Harper & Row, Publishers,Inc. v Nation Enterprises,471 US 539 (1985).69 See New York Times Co.v United States, 403 US 713 (1971).I thank Geof Stone forsuggestingthis example.

1993] 891

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892 The University of Chicago Law Review [60:873then, how to separatepermissiblefrom impermissibleapplicationsof the principle.I am not sure that any factor, or even set of fac-tors, can serve to explain fully all the cases mentioned.Some rele-vant considerations, however, might include the value of thespeech at issue, the magnitudeof the harm involved in producingthe speech, the extent to whichprohibitingthe speech is necessaryto prevent the harm from occurring,and the extent to which theexpressionitself reinforcesor deepens the initial injury.6?With re-spect to all of these considerations,the prohibition of materialswhose manufacture involves sexual violence seems similarenoughto the ban in Ferberto suggest that the regulation,while deterringthe worst forms of pornography,still would satisfy First Amend-ment standards.6'C. Obscenity

The governmentcan also regulate sexually graphicmaterialsharmful to women by using the long-established category of ob-scenity. This approachto regulatingsuch materials has come toassumethe aspect of heresy in the ranks of anti-pornographyemi-nism. Those who have argued for regulating pornographyhavestressed the differences, in rationale and coverage,between bans

60The FerberCourt viewedthe harm involvedin manufacturinghildpornography sgreatandthe value of the resultingexpressionas usually,thoughnot always,slight.See 458US at 757-58, 762-63,773-74. With respectto the necessityof prohibitingnot merelytheunlawfulconduct,but also the speechitself, the FerberCourt stated that "the distributionnetwork or child pornographymust be closed if the productionof materialwhichrequiresthe sexual exploitationof children is to be effectivelycontrolled." d at 759. Finally,theFerber Court noted that "the materialsproducedare a permanentrecordof the children'sparticipationand the harmto the child is exacerbatedby their circulation." d.61 The Supreme Court's decision in City of Renton v Playtime Theatres, 475 US 41(1986),mightbe taken to suggest-although, I believe,wrongly-a furtherextension of theargument:hat the governmentmay prohibit he distributionof materialsevensubstantiallycorrelated o unlawfulconduct n manufacture,o longas the definitionof these materials sviewpoint-neutral.n Renton,the Courtupheldthe regulationof adult motionpicture hea-ters on the groundthat such theatersgenerallycorrelatewith a rise in crimein the sur-roundingneighborhood.d at 50. The Courtdeclined to requirea showing hat anyparticu-lar movie theaterin fact produced hese results.Similarly,a statuteregulatinga categoryofspeech that is highly correlated with coercionof, or violence against, women might bethoughtto pass constitutionalmuster even if a particular nstance of that speechdid notinvolvecoercionor violence.This line of argument,however, akes whatI believeitself to bea problematicdecisionmuch too far.Crucial o the Rentonholdingwasthe limitedscopeofthe regulationunderreview: t zonedadult theaters,but did not prohibitthem.Id at 53. Atotal ban on speech,based on a merecorrelationbetweenthe speechand unlawfulconduct(even if the conduct, as in Renton and here, stemmed from somethingother than thespeech's communicativeeffects), would raise constitutionalconcerns of much greatermagnitude.

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Regulation After R.A.V.on the pornographicand bans on the obscene. It is said that ob-scenity law focuses on morality, while pornography regulation fo-cuses on power.62 t is said that offensivenessand prurience(two ofthe requirements for finding a work obscene) bear no relation tosexual exploitation.63 t is said that taking a work "as a whole,"asobscenity law requires,and exempting works of "seriousvalue," asobscenity law does, ill-comports with the goal of preventing harmto women.64I do not think any of this is flatly wrong, but I dowonderwhether these asserted points of difference-today, even ifnot in the past-suggest either the necessity or the desirability ofspurning the obscenity category.My doubts began in the midst of first teaching a courseon freeexpression.In keeping with the prevailingview, I rigidly segregatedthe topics of obscenity and pornography. (If I recall correctly, Itaught commercialspeech in between the two.) In discussing each,I iterated and reiterated the distinctions between them, in muchthe terms I have just described. I think I made the points clearlyenough, but my students resisted; indeed, they could hardly talkabout the one topic separately from the other. In discussing ob-scenity, they returned repeatedly to the exploitation of women; indiscussing pornography,of course, they dwelt on the same. Thosewho favored regulation of pornographyalso favored regulation ofobscenity-at least as a second-best alternative. Those who disap-proved regulation of pornographyalso disapproved regulation ofobscenity. Perhaps it was a dense class or I a bad teacher, but Ithink not; rather, I think the class understood-or, at the veryleast, unwittingly revealed-something important.

Even when initially formulated,the current standardfor iden-tifying obscenity was justified in part by reference to real-worldharms. To be sure, the Supreme Court, in its fullest statement ofthe rationale for establishing the category of obscenity, spoke ofthe need "to protect 'the social interest in . . . morality'" and,what is perhapsthe same thing, of the need "'to maintain a decentsociety . . . ' "65 Here, the Court appeared to stress a version ofmorality divorcedfrom tangible social consequencesand related tosimple sentiments of offense or disgust. But the Court also spoke

62 See MacKinnon,Feminism Unmodifiedat 147 (cited in note 13).63 See id at 174-75;Sunstein, 92 ColumL Rev at 20-21 (cited in note 45).64 See MacKinnon,Feminism Unmodifiedat 174-75 (cited in note 13).66 Paris Adult Theatre I v Slaton, 413 US 49, 59-60, 61 (1973) (emphasisdeleted),quotingJacobellis v Ohio,378 US 184, 199 (1964) (Warrendissenting),and Roth v UnitedStates, 354 US 476, 485 (1957).

1993] 893

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The University of ChicagoLaw Reviewof-indeed, emphasizedjust as strongly-the "correlationbetweenobscene materialand crime"and, in particular, he correlationbe-tween obscene materialsand "sex crimes."66 his concerntoo mayreflect a notion of morality, but if so, it is a morality rooted inmaterial harms.67And although some of the specific harms thenperceived might now appear dated-the Court was thinking asmuch of unlawfulacts involving"deviance"as of unlawful acts in-volvingviolence-still the Court understoodthe obscenitycategoryas emerging not merely from a body of free-floatingvalues, butfrom a set of tangible harms, perhaps includingsexual violence.68

Much more important is the way conceptions of obscenityhave evolved since then, in part because of the anti-pornographymovementitself, in part because of the deeperchangesthat move-ment reflects in public attitudes and morals.This shift in under-standing, I think, accounted for my classroom experience. It ishard to test a propositionof this sort, but I will hazardit anyway:one of the great (if paradoxical)achievements of the anti-pornog-raphy movement has been to alter views on obscenity-to trans-form obscenity into a categoryof speech understoodas intimatelyrelated, in part if not in whole, to harmsagainst women.69 urely,such a change in perception should come as no great surprise.Itwould be the more astonishingby far if obscenitywere viewed to-day as obscenity was viewed two decades ago, when the currentconstitutionalstandard was first announced.A doctrinal test doesnot so easily freezepublic understandings,especiallywhen the testin part relies (as the obscenity test does) on communitystandardsand consciousness.70Views of obscenity, in other words, are not

66 413 US at 58-59.67 See DanielO. Conkle,Harm,Morality,and FeministReligion:Canada'sNew-ButNot So New-Approach to Obscenity,10 Const Comm105,123-24(1993),for discussionofthese two kinds of morality (offense-basedand harm-based)as reflected in obscenitydoctrine.68 For this reason,I think CatharineMacKinnon's tatement that obscenityis "idea-tional and abstract,"rather than "concreteand substantive,"representssomethingof an

overstatement, ven as appliedto the initialunderstanding ndformulation f the category.See MacKinnon,Feminism Unmodifiedat 175 (cited in note 13).69 Oneinterestingproof(andproduct)of this reconceptualizations SenatorMitch Mc-Connell'sproposed egislationgranting he victimof a sexualoffensea rightto claim dam-ages from the distributorof any obsceneworkdeemed to have contributed o the crime.PornographyVictims'CompensationActof 1991,S 1521,102dCong,1st Sess (Jul22, 1991).Whatever he meritsof this legislation,whichraisesseriousconcernson numerousgrounds,it clearlypresupposesa link betweenobscenityand sexual violence.70 The obscenitystandardasks whetherthe average person, applyingcontemporarycommunitystandards,would find a workprurientand offensive in its depictionof sexual

[60:87394

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Regulation After R.A.V.static, and they may have evolved in such a way as to link obscen-ity with harms to women.

Now it might be argued,in response to this claim, that so longas the formal test for determiningobscenity remains the same, thisreconceptualization of obscenity will avail women little, becausethe test's focus on prurience and offensiveness will prevent newunderstandingsfrom affectingjudicial outcomes. But this responseseems to ignore the subtle and gradual ways law often develops. Asprosecutors, juries, and judges increasingly adopt this new view ofobscenity, enforcement practices and judicial verdicts naturallywill come to resemble, although not to replicate, those that wouldobtain under an anti-pornographystatute. There is in fact a sub-stantial overlap between the categories of obscenity and pornogra-phy: most of the worst of pornography(materialswith explicit andbrutal sexual violence) meets the obscenity standard. As publicperceptions continue to change, the application of the obscenitystandard increasingly will focus on the materials causing greatestharm to women;nor need this development reflect any illegitimateacts of prosecutorialdiscretion.71Moreover,this new focus may over time reshape, in a desirablemanner,even the governinglegal standard for determiningobscen-ity. Doctrinal adjustments and reformulationsof existing low-valuecategories of speech may well-and should-occur more readilythan the creation of whole new categories, especially when the pro-posed new categories incorporate clear viewpoint bias. So, for ex-ample, the current obscenity test's requirement that materials bepatently offensive may disintegrate in light of new understandingsabout the harms the obscenity categoryprincipallyshould address.This evolution of obscenity law recently has occurred in Canada,where the Supreme Court, responding to increased evidence andaltered perceptions of harm to women, made sexual violence ratherthan sexual offensiveness the keystone of the obscenity category.7Efforts to redefine the obscenity categoryin this manner-a redefi-conduct. It also asks whether the work lacks serious literary,artistic,political,or scientificvalue. See Miller v California,413 US 15, 24 (1973).71 If prosecutorsdetermine to enforceobscenitylaws only againstmaterialswith a cer-tain viewpoint,the resulting actions would be no less problematicthan the MacKinnon-Dworkin statute itself. But this result is hardly the only one that could be producedbychangingpublicnorms.For example,as noted earlierand discussedagainbelow,a focus onsexualviolencearguably s not viewpoint-biased.See text accompanyingnotes 52-54 and 74.Thus, to the extent that prosecutorsenforceobscenitylaws strictly againstsexuallyviolentmaterialsthat fall within the obscenity category,their acts would not violate the R.A.V.proscriptionof preferringsome viewpointsto others within a low-valuecategory.72 See Regina v Butler and McCord,[1992] 1 SCR 452, 134 NR 81, 108-18(Canada).

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The University of ChicagoLaw Reviewnition that, consistent with much First Amendmenttheory, wouldtend to divorce speech restrictions from simple feelings of of-fense-should proceed in the United States as well.73One measure along these lines that states or localities mightattempt involves the special regulationof subcategoriesof obscen-ity that contain sexual violence. R.A.V. might seem to bar such anapproach; t held, after all, that even within low-valuecategoriesofspeech, such as obscenity or fighting words, the governmentmaynot make distinctions that pose a dangerof viewpointbias. I havearguedabovethat a statute framedin terms of sexual violencemayno more implicate this principle than the several statutes upheldby the Court framedin terms of sexual explicitness.74But even ifcourts reject this argument,anotherpossibility presents itself. TheCourtin R.A.V. stated as an exceptionto its broadrule that a sub-category of unprotected speech can be specially regulated if itpresents, in especially acute form, the concernsjustifying the ex-clusion of the whole categoryfrom First Amendmentprotection.7"It is hardto knowwhat this exceptionmeans, especiallyin light ofthe Court'srefusal to apply it to the categoryof race-basedfight-ing words,which appearsto pose in especiallyacute formthe dan-gers giving rise to the entire fightingwords category.It is no lessdifficult to determine what the exception should mean, given theability to characterize in many different (and even conflicting)ways the concernsunderlyingany low-valuecategoryand the easeof restating those concernswith respect to any given subcategory.But given the Court'sacknowledgmentof the relationshipbetweensexual crimes and obscenity,some considerationshouldbe giventowhether a statute focusing on the particular kinds of obscenitythat most contributeto sexual violence wouldor should fall withinthe R.A.V. exception.76

79 It mightbe argued hat sucha redefinitionof the obscenitycategorywould render tviewpoint-basedand therefore inconsistentwith the First Amendment.This argumentde-pendsfirst on the proposition hat a statuteframed n terms of sexual violence s viewpoint-based,whichI have discussed n the text accompanying otes52-54. As important,he argu-ment depends on the propositionthat the obscenity category is not now viewpoint-based-in otherwords, hat it doesnot nowconstitutesome kind of exception o the rule ofviewpointneutrality.This propositions difficult o maintaingiventhe obscenitytest's reli-ance on communitystandardsof offensiveness.See Sunstein, 92 ColumL Rev at 28-29(cited in note 45). As betweenan obscenitydoctrine that focuseson sexualprurienceandoffensivenessand an obscenitydoctrinethat focuses on sexualprurienceand violence,theformerwouldappearto pose the greaterdangerof viewpointbias.74 See text accompanyingnotes 52-54and notes 71 and 73.76 112 S Ct at 2545-46.

76 The Courtwrote,forexample, hat "a State maychoose to regulatepriceadvertisingin one industrybut not in others,becausethe risk of fraud (one of the characteristics f

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Regulation After R.A.V.The key point here is that regulationof obscenity may accom-plish some, although not all, of the goals of the anti-pornographymovement; and partly because of the long-established nature ofthe category, such regulation may give rise to fewer concerns ofcompromising First Amendment principles. Even for those whothink that the obscenity doctrine is in some sense a second-bestalternative, it represents the first-best hope of achieving certainobjectives. And the obscenity doctrine itself may benefit by trans-formative efforts, as these efforts bring the doctrine into greateraccord with the harm-based morality of today, rather than of

twenty years ago.D. Exceptions to Viewpoint Neutrality

The final approach I will discuss, although far more brieflythan it deserves, involves crafting arguments to support explicitexceptions to the rule against viewpoint discriminationfor pornog-raphy or hate speech. As noted earlier, exceptions to this rule doexist, but without any clear rationale; the Court, in upholdingviewpoint discriminatoryactions, simply has ignoredtheir discrim-inatory nature. We know, from the decision in R.A.V. and the af-firmance of Hudnut, that the Court will follow no such course ofstudied inattention with respect to pornographyor hate speech: inboth cases, the presence of viewpoint discrimination was consid-ered-and was declareddispositive. The question, then, arises:Is itpossible to make a convincingargumentto the contrary?Is it pos-sible, that is, to accept viewpoint neutrality as a general principle,but to support an exception to that principle either for pornogra-phy or for hate speech? The challengehere is to explain in crediblefashion what makes one or two or three viewpoints (or one or twoor three instances of viewpoint discrimination) different from allothers-sufficiently different to support an exception and suffi-ciently different to ensure that the exception retains "exceptional"status. I cannot here provide the answerto that question. Instead,I will confine myself to some general observationsabout what con-siderations might be relevant to the inquiry.Two factors necessary (but, I will argue, generally insufficient)for departing from the norm of viewpoint neutrality are (1) the

commercialspeech that justifies depriving t of full First Amendmentprotection) . . is inits view greaterthere."Id at 2546.So too, it mightbe said, a State maychooseto regulate na specialmannersexuallyviolentobscenitybecause it poses a greaterriskof contributing osexualcrimes-one of the characteristicsof obscenitythat justifiesdepriving t of full FirstAmendmentprotection.

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The University of ChicagoLaw Reviewseriousness of the harm the speech causes, and (2) the "fit" be-tween the harm and the viewpoint discriminatorymechanismcho-sen to address it. The first consideration has an obvious basis:tothe extent a viewpoint causes insignificantharm, the state's deci-sion to suppressthat viewpointmust rest not on legitimatereasonsbut on mere dislike of the idea at issue. The second considerationis related and not much more mysterious:when the governmentrestrictsa viewpoint,but the viewpointis not coextensivewith theharmallegedly justifying the governmentalaction, we may wonder(once again) whetherthe action is in fact motivatedby simple dis-taste for the message.I have no doubt that a regulationof pornog-raphy and hate speech would satisfy the first inquiry, and littledoubt that such a regulationcouldbe carefullyenoughconstructedto satisfy the second. Is that, however,sufficient?I think not. Assume, for example, a carefully crafted regula-tion of abortionadvocacy,counseling,or referral(the categoryofspeech involved in Rust v Sullivan77), designedto reducethe inci-dence of abortions.Proponents of the regulationmight urge thatthe law is precisely crafted to reduce the significantharms stem-ming from abortion;hence the law satisfies the two inquiries setforth above. I presume this outcome would strike many as irre-trievablywrong.But, some opponentsof the regulationmight con-tend, the example fails to prove my larger point because the"harms" n the hypotheticalcase (howeverserious some might findthem) are in fact widely contested and for that reason cannot formthe basis of viewpoint regulation.These opponentsmight contrasta precisely crafted regulationof pro-smokingspeech, designed toreduce the frequency of tobacco use. In that case, the harms arenot contested; hence the regulationcan go forward.The contrasthere has much intuitive appeal, and I am not at all sure it hasnothing to teach us. But this general line of reasoningmakes theprotections of the First Amendment weakest at the very pointwhere views are the most unorthodox and unconventional.Andeven if I am wrongto think this result upside-downand unaccept-able, another question would follow: Are not the harms caused bypornographyand hate speech-characterized most generallyas ra-cial and sexual subordination-also very much contested? If theywere not, the debate over hate speech and pornographymight nothave reached so intense a level.

77 111 S Ct 1759, 1765 (1991).

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Regulation After R.A.V.Assuming,then, that harm and "fit"cannot alone justify view-point discrimination,perhaps the addition of low-valuespeech cando so. In other words, if legislators can make the case that speechleads to harm, if the speech regulatedcorrelatespreciselywith thatharm, and if the speech is itself low-value,then any viewpoint dis-criminationinvolved in the regulationbecomes irrelevant.78At firstglance, of course, R.A.V. definitively rejected this argument: thevery holding of that case was that even within a low-valuecategoryof speech, viewpoint discrimination is generally prohibited. So, touse one of the Court's hypotheticals, the government may pro-

scribe libel, but may not proscribeonly libel attacking the govern-ment; or, to use something near the actual case, the governmentmay prohibit fightingwords,but may not prohibitonly racist fight-ing words.79But what, then, are we to make of a category like ob-scenity-an entire low-value category (rather than a subdivisionthereof) that seems to incorporatesome viewpoint bias?80Could itpossibly be the case that viewpoint discrimination built into thevery definition of a low-value category is permissible, whereasviewpoint discrimination carving up a neutrally defined low-valuecategory is not?The proposition is perhaps less silly than it appears, for thelatter, but not the former, lacks the precise "fit" that I abovetermed necessary for viewpoint regulation.When the Court estab-lishes a low-value category, such as obscenity, it determines thatthe harms caused by the covered speech so outweigh its (minus-cule) value that regulationof the speech, even if viewpoint discrim-inatory, will be permitted. The Court, in effect, predecides thatregulation of the entire category will arise not from governmentalhostility to the ideas restricted, but rather from a neutral decisionbased on harms and value; the viewpoint bias will occur as a merebyproduct of the fact that only the restricted ideas cause greatharms and have sparse value. This predeterminationinsulates thegovernmentfrom a charge of viewpoint bias when the governmentregulates the entire category.But the establishment of a low-valuecategory has no such effect when the governmentregulates withinthe category on the basis of a viewpoint extraneous to the cate-

78 I take Cass Sunstein to be makingsomethinglike this argument n these pages.See60 U Chi L Rev at 829 (cited in note 17).79 112 S Ct at 2543 & n 4. The actual ordinance,as construed,prohibitedrace-basedfightingwords(discriminatingby subjectmatter),but the Courtarguedthat this restrictionoperatedin practicein the samewayas an ordinancebanningracistfightingwords(discrim-inating by viewpoint).See id at 2547-48.80 See notes 13 and 73.

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The University of ChicagoLaw Reviewgory'sboundaries.In that case, there is reasonto suspect that thegovernment is acting not for the reasons already found by theCourt to be legitimate, but rather out of hostility to a message.The criticalfailurein such a regulationrelates to "fit":because theregulation is underinclusive-because it does not regulate allspeech previously determined to cause great harm and have novalue-the concernarises that the governmenthas an illegitimatemotive. Hence, to say, as the Court did in R.A.V., that the govern-ment may not engagein unrelatedviewpointdiscriminationwithina low-value category-may not, for example, ban only obscenityproduced by Democrats-is not to say that viewpoint may notenter into the very definition of a low-valuecategory.Once again,in the latter case viewpointservesas a placeholder or a balanceofharms and values found legitimate by the Court; in the formercase, viewpoint serves as a warning signal that the governmentisacting for other reasons.But even if this distinction holds, the hard question remains:should the Courtaccept pornographyor hate speech as a low-valuecategoryof expression?The currentlyrecognizedcategoriesof low-value speech seem to share the trait, as Cass Sunstein writes, thatthey are neither "intended [nor] received as a contributionto so-cial deliberationabout some issue."81That definition offersseverallessons for any regulation,concededlybased on viewpoint,eitherofhate speech or of pornography. n the case of hate speech, such anordinance should be limited to racist epithets and other harass-ment: speech that may not count as "speech"because it does notcontributeto deliberationand discussion.In the case of pornogra-phy, any ordinanceshould be limited to materials that operate pri-marily (as obscene materials operate primarily)as masturbatorydevices;in addition, an explicit exception, like that in the obscen-ity standard, for works of serious value ought to be incorporated.Only if pornographyand hate speech are defined in this narrowmannermight (or should)the Courtacceptthem as low-valuecate-gories-a classificationthat, it must be remembered,depends atleast as muchon the non-expressivequalityof the speech as on thedegree of harm the speech causes.In additionto all this, perhapsone other factor-the modesty,or limited nature, of the viewpoint restriction-should be consid-ered priorto recognizinga low-valuecategoryof speech incorporat-ing viewpoint bias. This inquirywould focus on whetherthe regu-

81 Sunstein, 60 U Chi L Rev at 807.

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RegulationAfterR.A.V.lation of the categorywholly excises the viewpoint from the realmof public discourse or cuts off only a limited means of expressingthe viewpoint.82Even the MacKinnon-Dworkinversion of anti-por-nographylegislation would do only the latter: it would prohibitnotall messages of sexual subordination,but only those messages ex-pressed in a sexually graphicmanner.This feature seems critical tothe establishment of any exception to the viewpoint neutralityprinciple. The broaderthe restriction, the more it will skew publicdiscoursetoward some views and away from others. And the largerthe skewing effect, the greater the chances of impropergovernmental motivation; a wholesale, more than a marginal, re-straint suggests a government acting not for neutral reasons, butout of simple hostility to the idea restricted. Of course, the inquiryinto the scope of a viewpoint restriction does not lend itself to sci-entific precision. The matter is always one of degree, involving thedrawing of a line someplace on a spectrum. The inquiry, too, iscomplicated by the issue whether the particularmeans restricted(even if technically modest) constitute the most effective way ofdelivering the message, such that the restriction ought to betreated as sweeping. But the haziness of the endeavor does notgainsay the need to engage in it. For a viewpoint restriction thatresults in excising ideas from public discourseordinarilyought notto be countenanced-even when the restrictionapplies only to low-value speech and even when the restriction closely responds to se-rious harms.

CONCLUSIONThe presumption against viewpoint discrimination, reliedupon in Hudnut and further strengthened in R.A.V., has come toserve as the very keystone of First Amendmentjurisprudence.Thispresumption, in my view, has real worth, in protecting against im-properly motivated governmentalaction and against distorting ef-fects on public discourse. And even if I assign it too great a value,the principle still will have to be taken into account by those who

82 I do not at all advocate here that courts consider the modestyof a viewpointrestric-tion in all cases involvingviewpointregulation.Rather,I mean that courtsshould ask thisquestionwhen the othercriteria,discussedabove,for departingfromthe viewpointneutral-ity rule have been met. This approach s similarto the one used in City of Renton v Play-time Theatres,Inc., 475 US 41, 53 (1986),in which the SupremeCourtlookedto the scopeof the speechrestriction at issue-an inquirythe Courtnormallyeschews-in a case involv-ing low-valuespeech. For a detailed discussiongenerallydisapprovingany inquiryinto themodesty of a viewpointrestriction,althoughnot consideringthe precise issue raisedhere,see Stone, ContentRegulationand the First Amendment at 200-33 (cited in note 26).

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902 The University of ChicagoLaw Reviewfavor any regulation either of hate speech or of pornography.Ihave suggested in this Essay that the regulatoryefforts that willachieve the most, given settled law, will be the efforts that mayappear,at first glance, to promisethe least. They will be directedat conduct, rather than speech. They will be efforts using view-point-neutralclassifications.They will be efforts taking advantageof the long-establishedunprotectedcategoryof obscenity.Such ef-forts will not eradicateall pornographyor all hate speech from oursociety, but they can achieve much worth achieving. They, andother new solutions, ought to be debated and tested in a continu-ing and multi-facetedeffortto enhance the rightsof minorities andwomen, while also respecting core principles of the FirstAmendment.