Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment

Abstract

Feminists have recently sought the regulation of pornography on the grounds that pornography injures women as a group. This feminist challenge raises a vital constitutional question about the kinds of values the first amendment should protect. Professor Post here considers that question in light of three alternative means by which a legal order might be structured for a society made up of heterogenous groups: (1) assimilationism, which seeks social uniformity by imposing on all individuals the values of a dominant cultural group: (2) pluralism, which nurtures social diversity by protecting the values of competing cultural groups; and (3) individualism, which favors the choices of individuals over the values of any cultural group. He identifies the differences and connections among these perspectives by comparing the English and American laws against blasphemy. That comparison reveals the profoundly individualist character of American first amendment doctrine. Professor Post argues that the feminist challenge against pornography is controversial because it represents a pluralist challenge to our first amendment individualism, and he concludes that the success of the feminist challenge depends on its proponents' ability to offer a convincing vision of the first amendment that is consistent with pluralist values.