New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Forthcoming, Yale Journal of Law and the Humanities

Abstract

In this Article, I attempt to solve a First Amendment puzzle by turning to a surprising source. Here is the First Amendment puzzle: why would the Supreme Court offer robust First Amendment protection to non-obscene pornographic film, while relegating live erotic dance, far less sexually explicit, to the very “perimeter” of First Amendment protection? I suggest that one way to understand this puzzle can be found in the ancient myth of Medusa, the monster Freud interpreted as standing for the castrated female genitals. A direct confrontation with Medusa’s stare was deadly. But Perseus slayed Medusa by outsmarting her: he looked at her only in the reflection of his shield, thereby transforming her into the passive object of his gaze. I interpret Perseus’s shield as a precursor of pornographic film. In my view, live erotic performance, in which the dancer interacts with the audience and claims her own role as a First Amendment speaker, conjures up some of the threat of the unmediated stare of Medusa. In contrast, pornographic film, like Perseus’s shield, tames the monstrous threat of the woman’s direct stare. Thus, I read the Court’s puzzling distinction as bound up in anxieties about castration, the female gaze, and the possibility of female agency and speech that the gaze symbolizes. Ultimately, my goal in this article is to show how longstanding, indeed mythic, cultural assumptions about gender, sexuality and representation penetrate the Court’s doctrinal analysis.

Date of Authorship for this Version

May 2009