Power-critical theories like those of Catharine MacKinnon and Herbert Marcuse start from a powerful intuition: speech is not neutral. Words, images, and media systems can reproduce inequality by shaping who gets heard and who disappears. Their shared project is to make equality and not just liberty a core part of how we think about free expression.
But once we accept that premise, a thorny question follows: who decides what counts as emancipatory and what counts as oppressive? The moment theory meets law or policy, we enter the world of definitions, criteria, and judgment calls. This is what scholars call the line-drawing problem, and it’s one of the hardest challenges for any power-critical approach to speech.
What Counts as Subordination?
Take MacKinnon’s claim that pornography silences women. She defines it as “the graphic sexually explicit subordination of women through pictures and words.” But who decides what counts as “subordination”? Does that include artistic nudity? What about romance novels that reinforce traditional gender roles, or sex work created by women who see it as empowering? A rule designed to protect women’s equality might end up silencing women’s own voices about sex and desire.
The same problem appears in hate speech debates. Almost everyone agrees that racial slurs shouted at an individual are harmful. But what about satire that uses slurs to mock racism? Or religious speech that some find demeaning to LGBTQ people but others view as a statement of faith? Or political criticism of Israel that some hear as antisemitic? The challenge isn’t only in identifying clear cases of harm but in drawing principled boundaries between expression that wounds and expression that argues.
And context shifts everything. Protesters denouncing police violence might be condemned as hateful by some and celebrated as truth-tellers by others. Even on campus, a controversial speaker might be seen as either challenging orthodoxy or making marginalized students feel unsafe. The same words can silence or liberate depending on who speaks, who listens, and what history lies behind them.
The Moving Target of Meaning
The line-drawing problem also evolves with time. Speech that once seemed progressive may later be viewed as oppressive, and vice versa. Feminist writing once attacked for obscenity is now taught in law schools; activist slogans once condemned as divisive are now quoted in public ceremonies.
That temporal instability poses a deeper challenge: if the meaning of subordination changes, who gets to decide when and how the list of forbidden or restricted speech updates? Power-critical theorists worry about entrenched hierarchies, but any regulatory system risks creating an official class of interpreters who decide which voices count as liberating and which as dangerous.
Why the Line Still Matters
None of this means power-critical theories are wrong to see harm in speech. They reveal something traditional doctrine often ignores: that “free speech” can operate in profoundly unequal conditions. But they also face a built-in dilemma. The more they try to define and police subordinating speech, the more they risk reproducing the same domination they want to dismantle—this time through regulation instead of silence.
That’s why the most thoughtful versions of these theories move toward contextual criteria rather than fixed categories. They look not for “bad ideas,” but for patterns of silencing: repeated, targeted behavior that drives certain people out of participation. They recognize the importance of due process, narrow tailoring, and sunset clauses—ways to ensure that remedial measures don’t harden into permanent orthodoxy.
But even with these safeguards, the problem of judgment remains. Line-drawing isn’t a technical glitch but the moral and political core of the entire debate. It forces us to confront the reality that equality and freedom often point in different directions, and that deciding between them will always require contestation, not consensus.
In the next post, I’ll turn to “The Legitimacy Problem”—the question of who gets to decide when speech crosses the line, and how to prevent power-critical frameworks from becoming new instruments of control. The post will also connect these tensions to the logic of affirmative action, where law tried to favor the disadvantaged without freezing its own sense of justice in time.