One of the most contested issues in modern democracies is the regulation of speech and expression. The U.S.A., Canada and European countries (to take a few examples) adopt different approaches to the problem. European countries legislate and enforce hate speech codes, whereas the U.S.A. does not. Consistent with the European Convention of Human Rights, many European countries outlaw certain forms of pornography. On the other hand, a narrowly drawn pornography statute, regulating only sexually explicit material that constituted subordination, was struck down by an American appeals court. The difference in legal approach tracks differences between academics. Liberals and feminists fall out over pornography legislation, and liberals and critical race theorists over hate speech codes. But feminists also divide over pornography regulation, and liberal scholars disagree over hate speech codes.This essay approaches the controversy from an unexplored perspective: that of discursive, or deliberative, democracy. Within the framework originally formulated by Jürgen Habermas, and then explored further by Seyla Benhabib and Nancy Fraser, among others, it aims to locate the place of free speech, and limitations upon free speech, in a discursive democracy. It does so by specifically analyzing the controversy surrounding the regulation of pornography.Through this analysis the essay aims to accomplish three goals: first, to provide fresh insight into free speech and constitutional law, by examining the issues within a different analytical model (that of discursive democracy); second, by applying the framework of discursive democracy to a specific constitutional controversy, to analyze how its abstract principles play out in concrete circumstances; and third, by examining how discursive democracy could deal with social inequalities and hierarchies, to respond to scholars such as Ian Shapiro and Chantal Mouffe, among others, who argue that its inability to incorporate differences of power renders it both theoretically incomplete, and practically undesirable.The essay is divided into six sections. The following section discusses Habermas's abstract conception of discourse ethics. Section 3 examines how Habermas, and some of his interlocutors, instantiate discourse ethics through the structuring institutions of a constitutional democracy, with a specific focus on free speech. Subsequently, section 4 changes tack and analyses one type of feminist argument against the practice of pornography. Section 5 brings together the two strands of the article to answer the basic question: how ought discursive democracy deal with pornography? It concludes that there are good reasons to regulate certain forms of pornography. Section 6 examines four possible objections to the argument, three of which are internal arguments from within discursive democracy, while the fourth (the power-based objection) is an external critique.