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By Marisa Hirschfield '27
On November 12, former ACLU Legal Director David Cole delivered the annual Tanner Lecture on Human Values. His talk, entitled “A Defense of Free Speech from Its Progressive Critics,” drew a crowd to the Friend Center. Cole has litigated several major First Amendment cases and currently serves as a law professor at Georgetown. A self-identified progressive, Cole explicated an argument in favor of the First Amendment.
Cole outlined the main progressive critiques of the First Amendment. “What unites these critiques is the sense that the First Amendment is too protective at the cost of another very important value in our society: equality.” He also acknowledged the progressive skepticism of free speech’s “core demand” of neutrality – the idea that the government “must be neutral as to the content and viewpoint of speech when it is regulating private speakers.”
Cole offered several rebuttals to the equality critique of free speech. He pointed out that First Amendment protections are generally distributed equally across political parties. In the past couple years, conservatives and progressives had almost identical win-loss records on First Amendment cases. There is little evidence, he explained, that conservatives disproportionately benefit from First Amendment challenges.
Some progressives contend that the rich can exercise their speech rights more fully than the indigent. “But that’s true of all the rights in the Constitution,” Cole said. “If you’re rich, you’re able to enjoy the right to travel more than if you’re poor.”
Inequality is indeed a problem, Cole suggested, but the First Amendment is not its root cause. “It is true that the nature of negative rights is that they don’t address background inequalities, and the background inequalities are at Gilded Age levels and deeply problematic. But the answer to that background inequality is not to deny the right to counsel, the right to privacy, the right to travel, the right to speech. It is to advocate, using the right to speech, for more egalitarian, redistributive measures.”
Some scholars argue that the First Amendment should not go so far as to protect hate speech or pornographic content, whose harms are vast. Cole strongly disagreed with this notion. “The hate speech and anti-porn ordinances seek to expand the authority of the state to regulate speech in the name of fighting violence. We’ve gone down that path. It led to many, many people being thrown in jail for expressing speech that the government didn’t like and justified on the ground that it would further violence.”
Tension mounted when feminist legal scholar Catherine MacKinnon took the stage. MacKinnon, the first Special Gender Adviser to the Prosecutor of the International Criminal Court and a current professor at Harvard Law School, offered fifteen minutes of commentary on Cole’s lecture. Her central contention: pornography is not protected speech, nor is it worth the harm it engenders.
The equality critique of free speech, which she originated, is “substantive, not formal,” and “evidence-based, not abstract.” According to MacKinnon’s theory, first outlined in her 1993 book Only Words, free speech is not actually a neutral principle. Rather, it reifies existing social structures by granting immunity to those already in power. She claimed David Cole’s lecture was “interesting” but a “total evasion” of this reality. By focusing on political neutrality, she said, Cole failed to account for other factors which dictate the outcomes of First Amendment litigation. “David Cole never asks if power, i.e. structural-social dominance, usually wins under his approach. It does.”
“He never even considers the principle of empirical hierarchy that substantive equality identifies.” She continued, “black or female supremacy, or compulsory homosexuality, do not exist. He natters on about risks and dangers of anything but neutrality and asks if we trust the government. He has nothing to say about actual realities of substantive disguised-as-neutral approaches to existing law. As if reality doesn’t matter, and has no dangers, and can’t be made to count in court.”
For MacKinnon, the state’s “neutrality” towards pornography is not only dangerous, but functionally a commitment to upholding gender hierarchies. She argued that pornography is a distinct form of speech unworthy of protection. “Pornography commodifies women’s suffering as sex,” she explained. “Her pain is not an idea. Her screams under torture are not one side of a debate.”
She doubled down on this point later in her lecture. “Coercion,” she said, “is not a discussion. Assault is not a debate. Trafficking and subordination that actually subordinates is not a viewpoint.” In her approach, pornography is more than a mere vessel for ideas. Rather, it is “integral to multiple crimes.” Bans on pornography, it then follows, should be made constitutional in order to pursue the compelling state interest of sex equality.
MacKinnon has devoted much of her career to delegitimizing pornography, which she sees as a sizable threat to women’s safety. Since she first began her advocacy, however, the pornography industry has only exploded. She voiced her disappointment that the law has not yet produced sex equality. She said of Cole’s argument: the “throughline is what can be done if nothing changes in First Amendment law. What I'm talking about here is what has been done because nothing has changed.”
The facade of neutrality, she argued, is the problem. “Where we are is where it has gotten us, and that includes not equal.”
Marisa Hirschfield ’27 studies History and Creative Writing and is a PFS Writing Fellow. She is from New York City.
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