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This week, Amy Adler presented her paper entitled “Medusa: A Glimpse of the Woman in First Amendment Law,” at the Gender and Sexuality Law Program Spring Colloquium.  The following is a summary and reaction to the presentation.  (The painting below is entitled Nude Dancing by Anthony Armstrong)

Anthony Armstrong, Nude DancingImagine you’re a shrink.  After deciding the Barnes v. Glen’s Theatre, Inc. and City of Erie v. Pap’s A.M. cases, the U.S. Supreme Court walks into your office and plops itself on your couch.  It, nor anyone else, doesn’t understand how it got to the illogical, irrational conclusion that, while live nude dance is not protected under the First Amendment, non-obscene pornographic film, which is often far more sexually explicit, is.  Somehow, the Court finds consolation in pornographic film, and in comparison, finds itself extremely uncomfortable with live nude dance.  How do you figure out what is going on here, when the court’s doctrinal explanations simply don’t make sense?  

Amy Adler, Professor of Law at New York University, seeks to do just this in her fascinating work in progress, “Medusa: A Glimpse of the Woman in First Amendment Law,” which builds on her previous work entitled, “Girls! Girls! Girls! The Supreme Court Confronts the G-String.”  In “Medusa,” Adler considers the Medusa myth, so integral to Freud’s theory of castration anxiety and fetishism (read “Girls!” for more on that), and uses it as a diagnostic tool to understand why the Court is so terrified by the “threat posed by the live, powerful female body” (to use Adler’s description) such that, to blunt this threat, it draws doctrinal distinctions between the naked woman in pornographic film and in live erotic dance. 

Here’s the Medusa myth redux: Medusa, a once-mortal-now-turned monster with snakes for hair and a stare that turns men into stone, is ultimately slain by Perseus, through his use of Medusa’s reflection on his shield.  Analogously, pornographic film tames the female body through rendering the woman as the object, not the subject, of the gaze.  Adler expands this myth to consider the relationship between Medusa and speech; Medusa strikes men dumb by her stare, and she expresses herself by arranging a sculpture garden of all the men she has turned into stone.  When Perseus slays her, he steals back the power to make Medusa the object of his gaze.  As Adler puts it, “Perseus is now free to look at her without her looking back at him.”  And, as feminist film theorists have noted, the same can be said of the role of women in film (certainly pornographic film).

Commentator Professor Philip Hamburger offered up three thought-provoking questions:  Why not attack the First Amendment doctrine itself instead of its application?  Also, what’s the concern with the marginal speech idea, since foregoing that may constitute a world in which every action is conceivably “speech”?  And would the cases (and the theory) come out similarly with a fact pattern involving a nude male dancer?  Indeed, Adler made us all think: Is the female body actually speech, and can there be a marginal space between what is “speech” and “non-speech”?  Also, what else besides castration anxiety might be so discomforting about the spectacle of live nude dance – does it have something to do with gender instability embodied by the live nude female dancer, the queering of the strip club, or the temporal nature of the live erotic dance show, that does not exist when the same conduct is relegated to a moving picture?  And where is the discomfort – does it lie with the spectacle of the live naked dancing woman, or the act of sex itself that the spectacle may insinuate?     

When a court, especially the Supreme Court, gives legally doctrinal reasons for its decisions that are simply unsatisfying, it’s often hard to know where else to turn for explanation.  Adler gives us a great example of how other methodologies, namely feminist and psychoanalytic theory, can play such an illuminating role in deepening our understanding of why courts come to their conclusions, especially in their often assumption-ridden decisions on gender, sexuality, and sexual expression.  What I find so wonderful about all of our colloquia is the opportunity that this kind of legal scholarship provides us with: a chance to bring in other disciplines to take us where legal doctrine leaves us short.   

Jeannie ChungJeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.

 

 

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