Professor Catharine MacKinnon entered a world of First Amendment debate built on faith in the “marketplace of ideas.” The classic belief was that truth emerges when everyone can speak freely—the cure for bad speech is simply more speech. But MacKinnon turned that idea inside out. What if some people can’t speak back? What if speech itself becomes a tool of power, shutting some people out of the conversation altogether?
She begins with a simple observation: speech doesn’t happen in a vacuum. It happens in workplaces, classrooms, and media systems already shaped by inequality. When courts or institutions treat all speech as equal, they overlook how some forms of speech—harassment, threats, or slurs—work to silence others. The harm isn’t just hurt feelings; it’s the loss of participation. The real question, she says, isn’t “Did someone say something offensive?” but “Who can still speak after the words are said?”
Imagine a Black student who posts about racial bias on campus. Within hours, she faces hundreds of angry replies filled with racial slurs. Some users post her personal information. The platform’s algorithm then flags her own posts as “controversial,” limiting how many people see them. She stops posting. She avoids public events. She starts to disappear from view. No one has officially censored her, but she has been silenced all the same. Other people’s “free speech” has erased her ability to speak freely.
MacKinnon calls this dynamic subordination through speech. Her goal was to help the law see speech in its social context: Is it repeated? Is it targeted? Does it make certain people afraid to participate? When speech functions that way, she argues, it’s a form of inequality that law should take seriously.
Her ideas reshaped civil rights law. Because of her work, U.S. law now recognizes that harassment (verbal or physical) can be a form of discrimination when it creates conditions that drive people out of workplaces or schools. This was a major shift: before MacKinnon, such behavior was often dismissed as personal or trivial. She helped make clear that equality means more than formal access; it means the real ability to participate fully without being demeaned or silenced. Today, workplace and campus policies against harassment, bias training, and complaint systems all reflect that insight. They are built not to police ideas, but to ensure everyone can belong and contribute on equal terms.
The same logic applies online. MacKinnon would say the goal isn’t to silence the attackers but to protect the target’s ability to stay in the conversation. That means creating systems that interrupt harassment before it drives people away: tools that limit mass attacks, fair reporting processes that don’t penalize victims, and designs that amplify underrepresented voices. In short, the solution is to build environments where everyone can speak safely and be heard.
Pornography and the Structure of Silence
MacKinnon’s most controversial example of this argument was her work on pornography. She didn’t see pornography as a matter of private fantasy or mere “expression,” but as a system of social messaging that teaches inequality. Pornography, she argued, doesn’t just say things about women—it does things to them. It constructs women as objects to be dominated and used. In a world saturated with these images, women’s speech about equality and dignity becomes unintelligible. Their real experiences are measured against a distorted script in which they exist for someone else’s pleasure.
MacKinnon called this a form of sexual politics built into speech itself. In her view, pornography works like a social institution, shaping how people imagine gender, sex, and power. It’s not neutral expression but instruction in subordination. That’s why she and Andrea Dworkin proposed laws framing pornography as a civil rights violation, giving women harmed by it the right to sue. The goal was not censorship for morality’s sake; it was empowerment. She wanted women to have a legal remedy for being represented as things rather than persons.
Though these proposals were struck down by courts as unconstitutional viewpoint discrimination, their ideas left a lasting mark. They pushed feminist theory and law to confront the question of whose speech counts in a supposedly free society. MacKinnon’s point was that the “marketplace of ideas” can’t be fair when some voices are systemically drowned out or defined by others. Protecting pornography as speech, she argued, doesn’t create freedom. Instead, it entrenches a speech hierarchy where some speak and others are spoken for.
For MacKinnon, freedom of speech and equality aren’t opposites. They depend on each other. A world that tolerates speech that silences others isn’t truly free. Real freedom of expression, she insists, requires more than the right to speak; it requires the power to be heard.
If speech can sometimes silence others or make it harder for them to participate as equals, when—if ever—should the law be allowed to restrict one person’s speech in order to protect another person’s ability to speak?
I agree with Mackinnon that pornography shapes people's views of women and especially perpetuates negative views of them and behavior toward them. There is tons of scientific research delving into this. I also think that the porn industry is extremely harmful to many of the women who are apart of it. In my ideal world pornography (such as on a pornography website) would probably be banned. However, in reality, I don't think there is a way to do that without also censoring valuable forms of speech that overlap with it. Additionally, I keep thinking of what Strossen said in the hate speech panel. I think her sentiment about enforcement applies here too. Most likely, censorship of pornography would end up unfairly targeting those it is designed to protect because those in charge of enforcing the censorship often don't have minorities best interests in mind.
My answer starts from a disagreement with the "lower value" approach that hovers over this whole unit. I do not trust the government to rank the value of speech, because as the casebook itself points out, speech tends to get labeled less valuable exactly when it attacks majoritarian values most sharply. That is why I think Easterbrook was right to reject Indianapolis's low-value argument even while accepting that pornography causes real harm: once officials can grade speech by its worth or its viewpoint, the grading power will serve whoever already holds power. Strossen's Canada evidence makes the point concrete, since the new censorship authority landed first on lesbian bookstores and on Dworkin's own books. So my answer to the closing question is narrow: the law can restrict speech to protect participation only when the rule turns on conduct-like features (repetition, targeting, exclusionary effect, as in harassment law) and never on a judgment about the value or perspective of what was said. MacKinnon is right that silencing is a real harm; I just do not think a government valuation of speech is a remedy the least powerful can afford.