New York University Public Law and Legal Theory Working Papers

Document Type



31 N.Y.U. Review of Law and Social Change 695 (2007)


This piece, an introduction to the “Symposium on Problems of Censorship in a New Technological Age,” starts with a controversial assertion: In the escalating war against pornography, pornography has already won. I begin by exploring pornography’s newfound cultural dominance. I then ask what this change in our cultural landscape means for legal regulation. The Symposium focuses on three significant fronts in the war on pornography: attempts to restrict the online environment in the name of protecting minors; the battle against child pornography; and the ongoing and indeed escalating prosecution of obscenity. This introduction argues that we should look at these three doctrinal areas against the larger backdrop I paint of pornography’s new and central role in our culture. Rather than viewing each area in isolation, I suggest that we picture these three doctrines as alternate weapons in the government’s arsenal as it fights a larger, losing war against pornography. This perspective reveals the porous nature of doctrinal boundaries in actual practice. In particular, this perspective illuminates otherwise puzzling developments in obscenity law. Ten years ago, obscenity law seemed to be in its death throes, a doctrine largely abandoned by prosecutors. Yet obscenity law has begun to stage a dramatic and surprising comeback. I submit that its resurgence can only be fully understood by viewing obscenity law as one front in a larger and more complicated war. Ultimately, this broader perspective not only sheds light on changes within obscenity law, but also suggests a more complex take on each battle line in the government’s campaign against pornography: free speech victories in one area may lead to defeats in another.

Date of Authorship for this Version

March 2008