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  • Andrew Koppelman (a1)

Is pornography within the coverage of the First Amendment? A familiar argument claims that it is not. This argument reasons that (1) the free speech principle protects the communication of ideas, which appeal to the reason (the major premise); (2) pornography communicates no ideas and appeals to the passions rather than the reason (the minor premise); (3) therefore pornography is not protected by the free speech principle. This argument has been specified in different ways by different writers. The most prominent and careful of these are Frederick Schauer and John Finnis. Both founder on the attempt to distinguish pornography from art, which both would protect. If art, film, and literature should be protected, then this protection should extend to the pornographic subsets of these genres.

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1. This essay was provoked by an exchange with Professor James Weinstein, the most recent exponent of this argument, who correctly points out that, although I have questioned the constitutional nonprotection of obscenity, I have not explained why obscenity should be thought to raise any free speech issue in the first place. James Weinstein, Democracy, Sex and the First Amendment, 31 N.Y.U. Rev. L. & Soc. Change 865, 875 n. 44 (2007), citing Koppelman Andrew, Does Obscenity Cause Moral Harm?, 105 Colum. L. Rev. 1635 (2005). For a response to Weinstein's specific formulation of the argument, see Koppelman Andrew, Free Speech and Pornography: A Response to James Weinstein, 31 N.Y.U. Rev. L. & Soc. Change899 (2007).

2. 315 U.S. 568 (1942).

3. Id. at 572.

4. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 (1973), citing Finnis John M., “Reason and Passion”: The Constitutional Dialectic of Free Speech and Obscenity, 116 U. Pa. L. Rev. 222 (1967); see also Miller v. California, 413 U.S. 15, 34–35 (1973); Roth v. United States, 354 U.S. 476, 484 (1957).

5. The argument has been made more briefly by others. See, e.g., Catharine MacKinnon, Only Words (1993), at 16–17; Harry M. Clor, Public Morality and Liberal Society (1996), at 213–227; Cass R. Sunstein, Pornography and the First Amendment, 1986 Duke L.J. 589, 606; Cass R. Sunstein, Democracy and the Problem of Free Speech (1993), at 215; Wells Christina E., Reinvigorating Autonomy: Freedom and Responsibility in the Supreme Court's First Amendment Jurisprudence, 32 Harv. C.R.-C.L. L. Rev.159 (1997); Jennifer Hornsby, Speech Acts and Pornography, in The Problem of Pornography (Susan Dwyer ed. 1995), at 220.

6. Frederick Schauer, Free Speech: A Philosophical Enquiry (1982), at 181. Schauer earlier published substantially the same argument in Frederick Schauer, Speech and “Speech”—Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L.J. (1979), at 899. The same argument is adopted by Attorney General's Commission on Pornography: Final Report (1986), at 260–269, written in large part by Schauer, who was a member of the commission. See Frederick Schauer, Causation Theory and the Causes of Sexual Violence, 1987 Am. B. Found. Res. J. 737, 737–738 n. 5.

7. Schauer, Free Speech, supra note 6, at 181.

8. Id. at 182.

9. Id.

10. With both Schauer and Finnis, I will take their major premises as given. My claim is that even if those premises are accepted, the conclusions do not follow. I take no position here as to whether those premises are correct. Doing that would require me to state and defend the correct foundational theory of free speech, and even if I could do that, it is beyond the scope of a short paper such as this.

A different argument has been offered by Ishani Maitra and Mary Kate McGowan to show that pornography is outside the coverage of the free speech principle. Maitra and McGowan say little about the rationale for free speech protection, but they claim that “significantly obligation-enacting utterances,” verbal acts that actually change the relationships of obligation that exist between persons in a significant way, are outside its scope. Pornography is significantly obligation-enacting if, as feminist critics such as Catharine MacKinnon contend, it “ranks women as inferior (e.g., as socially subordinate to men); it deprives women of important powers (e.g., the ability to fully participate in the democratic process); and it legitimates discriminatory behavior against women (e.g., by making it socially acceptable to treat women as mere sexual objects).” Ishani Maitra & Mary Kate McGowan, The Limits of Free Speech: Pornography and the Question of Coverage, 13 Legal Theory 41, 64 (2007).

The proposed principle proves too much. It would justify, for example, the Sedition Act of 1798, which made it a crime to write about Congress or the president “with intent to defame” or “to excite against them. . . the hatred of the good people of the United States.” 1 Stat. 596. If pornography is significantly obligation-enacting, then so was speech critical of President Adams; it ranked the president as an abuser of his powers, tended to deprive him of important powers by making it likely that he would lose the election of 1800 (as in fact he did), and legitimated voting against him. If, however, speech critical of incumbent officeholders is unprotected, then it is hard to see what is left of free speech.

Other speech act theorists have suggested a different and more theoretically (though perhaps not empirically) sound approach, conceding that pornography is speech but claiming that its illocutionary effect is to disable women from being able to engage in speech acts of their own, such as communicating unwillingness to engage in sex. “Faced with a conflict between freedoms to speak—faced, for example, with a conflict between subordinating with words and refusing with words—perhaps one should judge that refusal matters more.” Jennifer Hornsby & Rae Langton, Free Speech and Illocution, 4 Legal Theory 21, 33 (1998). That claim is beyond the scope of this paper, which considers only whether the suppression of pornography implicates free speech at all. On the empirical issue, compare Leslie Green, Pornographizing, Subordinating, and Silencing, in Censorship and Silencing (Robert Post ed. 1998), at 285; with Rae Langton, Subordination, Silence, and Pornography's Authority, in Censorship and Silencing (Robert Post ed. 1998), at 261.

Thanks to Profs. Maitra and McGowan for helpful and generous correspondence.

11. Schauer, Free Speech, supranote 6, at 69.

12. Charles Fried, Saying What the Law Is: The Constitution in the Supreme Court (2004), at 78–142; Martin Redish, Freedom of Expression: A Critical Analysis (1984); Baker C. Edwin, The Scope of the First Amendment Freedom of Speech, 25 U.C.L.A. L. Rev.964 (1978); Richards David A.J., Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. Pa. L. Rev.45 (1974); Scanlon T.M., A Theory of Freedom of Expression, 1 Phil. & Pub. Aff.204 (1972).

13. Strauss David A., Persuasion, Autonomy, and Freedom of Expression, 91 Colum. L. Rev. 334, 334 (1991).

14. Id. at 354.

15. Id. at 360. Strauss thinks that this principle bars regulation of pornography unless pornography is peculiarly likely to elicit a nonrational response. Id. at 345–346 n. 35. Such a position, he notes, would require “substantial argument.” Id. at 345.

Larry Alexander has objected that Strauss's argument will not generate the general rule he proposes, because “autonomy is on both sides of the equation.” Larry Alexander, Is There a Right of Freedom of Expression? (2005), at 176. The government, when it interferes with speech that it thinks will mislead its audience, may seem to be wrongly paternalizing that audience. But if it does not intervene and the audience is in fact misled, then this will signify “some defect in the audience's ability to deliberate rationally about the message, a defect that impairs the audience's autonomy.” Id. Suppression of messages that do this will enhance rather than violate the audience's autonomy. Alexander challenges Strauss at a more fundamental level, arguing that, if (as Strauss concedes) Strauss's principle does not bar the government from censoring false statements of fact, then nothing is left of the principle: any opinion that the government wants to suppress will be dangerous only because it contains implicit assertions of facts that in the government's view the audience should not believe. Id. at 68–71.

Alexander's objection makes autonomy too easily disappear from the anticensorship side of the equation: if the state disagrees with anything the speaker is saying, then it is entitled (Always? Under some circumstances? What circumstances?) to conclude that the speaker must be manipulating or misleading the audience somehow, and so the audience's autonomy will be promoted if the speaker is silenced. The objection to thought control has vanished, because whenever thought control is exercised, the presumedly benign control enhances rather than invades the patient's autonomy. This goes too far. If human beings are going to live in respectful relations with one another, they must, as a general matter, regard one another as free and rational. See Stephen Darwall, The Second Person Standpoint (2006), at 269–276. There may be exceptions, and Alexander is right that they cannot be ruled out, but the presumption must run strongly the other way.

16. Schauer, Free Speech, supranote 6, at 86.

17. Id. at 81.

18. Id.

19. Another complication, which I will not explore further here, is that the two reasons for protecting speech that I have described here might imply different ranges of coverage; the area of autonomy of the mind might differ from the area of governmental incompetence. Schauer thus suggests that freedom of speech might not have any essential core but rather be a cluster of interrelated principles. Id. at 14; Schauer Frederick, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 277 (1981); Schauer , Must Speech Be Special? 78 Nw. U. L. Rev. 1284 (1983); Schauer , Codifying the First Amendment: New York v. Ferber, 1982 Sup. Ct. Rev. 285, 313. In his latest work, this has led him to an extreme skepticism: “if all of the judicially recognized and historically available theories are available—self-expression, individual autonomy, dissent, democratic deliberation, the search for truth, tolerance, checking government abuse, and others—then their collective coverage is so great as to be of little help in explaining the existing state of First Amendment terrain.” Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1786 (2004). But this gives up too quickly. Some of these theories are more salient than others, and together the most persuasive of them still protect only a subset of speech. Robert Post addresses the salience question by noting that “any function attributed to the First Amendment will require a form of social organization in order to accomplish its ends.” Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, in Eternally Vigilant (Lee Bollinger & Geoffrey Stone eds. 2002), at 164 n. 47. Thus, for example, the truth-seeking rationale for free speech “requires the protection only of speech that communicates ideas and that is embedded in the kinds of social practices that produce truth.” Id. at 164. Two free speech principles Schauer endorses in his early work—autonomy of the mind and governmental incompetence—provide ample reason to protect pornography, and these principles happen to produce the same range of coverage for pornography. Thanks to Fred Schauer for pressing me to engage with his recent work.

20. The confusion is clarified in Laurence Tribe, American Constitutional Law (2d ed. 1988), at 825–832.

21. Schauer, Free Speech, supranote 6, at 89.

22. I take no position on that question here. I discuss the harm question in Koppelman, Does Obscenity Cause Moral Harm? supra note 1; and Koppelman, Reading Lolita at Guantanamo, 53 Dissent 64 (Spring 2006).

23. In another article, Schauer notes that prurient material may be “inextricably coupled” with intellectual or scientific value, and he rejects Miller's limitation of protection to material with “serious” value. “In order for the test to function, we must be able to say that only material that is completely non-intellectual is excluded from the definition of ‘speech.’” Frederick Schauer, Response: Pornography and the First Amendment, 40 U. Pitt. L. Rev. 605, 609 (1979). He thus makes clear that the set of material he means to deny protection is very narrow. He does not pause to wonder whether it is an empty set.

24. Robert C. Post, Constitutional Domains (1995), at 111–112; Martin Redish, Freedom of Expression (1984), at 75; Cole David, Playing By Pornography's Rules: The Regulation of Sexual Expression, 143 U. Pa. L. Rev. 111, 124131 (1994); Roberts Simon, The Obscenity Exception: Abusing the First Amendment, 10 Cardozo L. Rev. 677, 711713 (1989); Gey Steven G., The Apologetics of Suppression: The Regulation of Pornography as Act and Idea, 86 Mich. L. Rev. 1564, 1594 (1988). Steven Gey is on weaker ground when he challenges Schauer's claim that the Court does not protect all “speech” as the word is generally used. Gey acknowledges that conspiracy and perjury are unprotected, but in those cases, he claims, “speech is simply one instrumentality by which a crime unrelated to expression is committed.” Id. at 1591. The distinction is unpersuasive. How can one commit perjury without using language to state a proposition? See generally Schauer, Categories and the First Amendment, supra note 19.

25. This argument was made in conversation by Geoffrey Stone, who however did not say that he endorsed it.

26. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973) (citations omitted).

27. See Walter Kendrick, The Secret Museum: Pornography in Modern Culture (1988), at 138–143; Helen Lefkowitz Horowitz, Rereading Sex: Battles over Sexual Knowledge and Suppression in Nineteenth Century America (2003), at 92–93, 97–107, 394–403.

28. Horowitz, supra note 28, passim.

29. See Ronald J. Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective (2006), at 69–82.

30. Reimann Mathias, Prurient Interest and Human Dignity: Pornography Regulation in West Germany and the United States, 21 U. Mich. J.L. Reform201 (1987–1988).

31. Krotoszynski, supranote 29, at 164–171.

32. Richards David A.J., Pornography Commissions and the First Amendment: On Constitutional Values and Constitutional Facts, 39 Me. L. Rev. 275, 282 (1987).

33. See Paris Adult Theatre I v. Slaton, supra note 4.

34. Schauer wrote after Finnis and was familiar with Finnis's work. See Schauer, Free Speech, supranote 6, at 188, citing Finnis, supra note 4.

35. Finnis, supra note 4, at 223, quoting Ginzburg v. United States, 383 U.S. 463, 479 (1966).

36. Id.

37. Id. at 229–30. This exaggerates Madison's hostility to the passions. In the Virginia Report, attacking the Sedition Act of 1798, see supra note 10, he argued that democracy required that the press be free to discuss whether incumbent office holders “should be brought into contempt or disrepute, and incur the hatred of the people.” James Madison, Virginia Report, in The Mind of the Founder: Sources of the Political Thought of James Madison (Marvin Meyers ed., rev. ed. 1981), at 263.

38. Id. at 230.

39. Id.

40. On developments in the United States, see generally Edward de Grazia, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (1992); for a comparative overview of America and Europe, see Kendrick, supra note 27.

41. Bork Robert, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J.1 (1971). Bork substantially retreated from this position during the hearings on his failed Supreme Court nomination. Norman Vieira and Leonard Gross, Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations (1998), at 99–105; Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (1989), at 242–251. More recently, he has indicated that he would protect all ideas but has embraced something like Schauer's view that pornography contains no ideas. His claim that “stories depicting the kidnapping, mutilation, raping, and murder of children do not, to anyone with a degree of common sense, qualify as ideas” leaves continuing doubt about what he would protect. Robert Bork, Slouching towards Gomorrah: Modern Liberalism and American Decline (1996), at 148. Most recently, he has denounced “the Court's reckless expansion of the ‘speech’ protected by the First Amendment to encompass. . . a sickening variety of obscenities.” Bork Robert H., The Judge's Role in Law and Culture, 1 Ave Maria L. Rev.19, 21 (2003). Appended to this sentence is a citation to, inter alia, Butler v. Michigan, 352 U.S. 380 (1957), which he accurately summarizes as “holding unconstitutional a ban on the sale to adults of books deemed harmful to children.” Id. at 21 n. 7. Evidently Bork now thinks that it is permissible for a state to “reduce the adult population. . . to reading only what is fit for children.” Butler, 352 U.S. at 383. This may be an even narrower interpretation of the First Amendment than his original view, since some core political speech may be unfit for consumption by children. It is doubtful whether, on this view, the Amendment would protect publication of Independent Counsel Kenneth Starr's report on the Clinton-Lewinsky scandal, for example.

42. Finnis, supra note 4, at 231.

43. Id. at 233.

44. Id.

45. Id. at 235.

46. Id. at 236.

47. See Susanne K. Langer, Philosophy in a New Key: A Study in the Symbolism of Reason, Rite, and Art (3d ed. 1957), at 79–102.

48. Stephen Gey is Finnis's most prominent critic, but he makes little effort to explicate or understand this admittedly somewhat obscure argument. Gey's principal objection is that Finnis “does not cite any empirical studies supporting” the distinction between reason and passion, and Gey concludes that the distinction is unpersuasive because it rests on “no scientific analysis.” Gey, supra note 24, at 1587, 1588. Gey's claim that Finnis lacks a scientific basis reveals exactly the kind of positivism that Langer was seeking to refute. Gey further argues that Finnis's defense of artistic expression works “only by ignoring the art and concentrating on the ideas that art is intended to communicate.” Id. at 1593 n. 134. This allegation attributes to Finnis the opposite of his actual view by ignoring Langer's claim, adopted by Finnis, that art is not reducible to propositions: “A symbol is a sensuous object which by virtue of its highly articulated structure can express the forms of vital experience—feeling, life, motion and emotion—which purely intellectual discourse cannot convey.” Finnis, supra note 4, at 232. Gey, supra note 24, at 1592–1593, pounces on Schauer's concession that emotive speech is protected, which he thinks is a major departure from Finnis. As we have seen, however, Finnis must make a similar concession to the emotions in order to protect the arts.

49. Finnis, supra note 4, at 235.

50. Id. at 239.

51. In fact, according to the most recent edition of the Encyclopedia of Philosophy, it is “now relatively neglected.” John Dilworth, Langer, Susanne K., in Encyclopedia of Philosophy 187–188 (Donald M. Borchert ed., 2d ed. 2006). Difficulties are reviewed in Stephen Davies, Musical Meaning and Expression (1994), at 123–134.

52. “Langer's theory removes emotion from art, replacing it with conceptions of emotions. In so doing, her theory undermines the basis for emotional responses to musical works and makes mysterious the power of art to evoke such responses.” Davies, supra note 51, at 134.

53. Roger Scruton, The Aesthetics of Music (1997), at 26; see also id. at 47–49.

54. See Linda Williams, Hard Core: Power, Pleasure, and the “Frenzy of the Visible” (rev. ed. 1999), at 123–124, 132–133, 151–152.

55. See Martha C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions (2001) (setting forth this argument); and Martha C. Nussbaum, Hiding From Humanity: Disgust, Shame, and the Law (2004) (applying this framework to legal problems).

56. Nussbaum argues that Langer's account of emotions cannot adequately account for this. Nussbaum, Upheavals of Thought, supra note 55, at 261–62.

57. The cognitive content of sexual emotion is explored in detail in Roger Scruton, Sexual Desire: A Moral Philosophy of the Erotic (1986).

58. See Sherman Jeffrey G., Love Speech: The Social Utility of Pornography, 47 Stan. L. Rev. 661 (1995).

59. I saw the play twice in its original Broadway run in the 1970s. The woman was played by a different actress each time. Both actresses looked attractive without their clothes and doubtless were cast with this in mind.

A majority of the Court has agreed that any effort to enforce a ban on public nudity against a performance of a serious play containing nudity, such as Equus, would violate the First Amendment. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 585 n.2 (1991) (Souter, J., concurring); id. at 587 (White, J., joined by Marshall, Blackmun, & Stevens, JJ., dissenting). The judges also argued about the significance of the nonenforcement of a nudity ordinance against Equus in City of Erie v. Pap's A.M., 529 U.S. 277 (2000). See also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 550, 557 (1975) (holding that Hair, including the “group nudity and simulated sex” involved in the production, is protected speech, and rejecting the view “that live drama is unprotected by the First Amendment—or subject to a totally different standard from that applied to other forms of expression”).

60. Miller v. California, 413 U.S. 15, 24 (1973).

61. This is a long-standing instability in obscenity law that has been present ever since the courts began to notice that aesthetic value could justify otherwise obscene publications. See Ian Hunter, David Saunders, & Dugald Williamson, On Pornography: Literature, Sexuality and Obscenity Law (1993), at 142–145.

62. The alternative is to grasp the aesthetic nettle and argue that works of art with prurient appeal or sexual themes cannot have literary merit. See, e.g., United States v. One Book Called Ulysses by James Joyce, 72 F.2d 705, 709–11 (2d Cir. 1934) (Manton, J., dissenting); for a similar view, see Bork, Slouching towards Gomorrah, supra note 41, at 147, 148–149. Finnis is perhaps making an argument of this kind when he writes that “to the extent that an appeal is made to prurient interest, the psychical distance essential to an aesthetic attitude is liable to be destroyed.” Finnis, supra note 4, at 237. It is fair to tell Shaffer that he is playing with fire, but this is a decision for which the playwright or the audience is better suited than the censor.

63. Finnis, supra note 4, at 235.

64. Schauer, Free Speech, supra note 6, at 182.

65. Roth v. United States, 354 U.S. 476, 495 (1957) (Warren, C.J., concurring in the result). One may perhaps try to distinguish the pornographic based on which type of reception an image centrally aims at; that is what Warren had in mind. Jerrold Levinson offers a more recent formulation of this idea, arguing that aesthetic attention focuses on the form or manner in which an image is presented while pornographic attention sees through or past the medium to its object. Jerrold Levinson, Erotic Art and Pornographic Pictures, 29 Phil. & Literature 228 (2005).

66. Frederick Schauer, The Law of Obscenity (1975), at 92–95.

67. Hunteret al., supra note 61, at 22, 183–184; David Saunders, Obscenity: Aesthetics in Obscenity Law, in Encyclopedia of Aesthetics 383 (Michael Kelly ed. 1998). It must be acknowledged that Hunter and his coauthors are persuaded by Schauer's argument, which they quote with approval as presented in Attorney General's Commission, supra note 6. Hunter et al., supra note 61, at 227–228.

68. Schiller Friedrich, The Aesthetic Education of Man in a Series of Letters (E. Wilkinson & L.A. Willoughby trans., Oxford 1967) (1795), at 215.

69. Finnis, supra note 4, at 233–234.

70. Schiller, supra note 68, at 109; see also id. at 213–215.

71. Id. at 199. Schiller did not think that material with sensuous interest should be excluded from art; the synthesis he sought “does not reside in the exclusion of certain realities, but in the absolute inclusion of all realities.” Id. at 125. Compare E.M. Forster: “Nothing is more obdurate to artistic treatment than the carnal, but it has to be got in I'm sure: everything has got to be got in.” Forster, Letter to Siegfried Sassoon, in I Selected Letters of E.M. Forster 316 (Mary Lago & P.N. Furbank eds., 1983).

72. Hunter et al.,supra note 61, at 20.

73. Eberhard Kronhausen & Phyllis Kronhausen, Pornography and the Law (1959), at 260, quoted in Hunter et al., supra note 61, at 20.

74. Ginsberg v. State of New York, 390 U.S. 629, 636, 642 n.10 (1968); Memoirs v. Att'y General, 383 U.S. 413, 431 nn. 8, 10 (1966) (Douglas, J., concurring); id. at 442 n. 1 (Clark, J., dissenting); Ginzburg v. United States, 383 U.S. 463, 490 (1966) (Douglas, J, dissenting); id. at 500 (Stewart, J., dissenting); Mishkin v. State of New York, 383 U.S. 502, 506 n.4, 508 n.7 (1966); Jacobellis v. Ohio, 378 U.S. 184, 188 n.3, 195 n.10 (1964) (opinion of Brennan, J.); Bantam Books v. Sullivan, 372 U.S. 58, 67 n.7 (1963); Manual Enterprises v. Day, 370 U.S. 478, 488, 489 (1962); Times Film Corp. v. City of Chicago, 365 U.S. 43, 74 n.12 (1961) (Warren, C.J., dissenting); Smith v. California, 361 U.S. 147, 168, 169 n.* (1959) (Douglas, J., concurring); Kingsley v. Regents, 360 U.S. 684, 699 (1959) (Douglas, J., concurring); Roth v. United States, 354 U.S. 476, 486 n.19 (1957); id. at 510, 511, 512, 514 (Douglas, J., dissenting).

75. Lockhart William B. & McClure Robert C., Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 7273 (1960), quoted in Hunter et al., supra note 61, at 174.

76. Lockhart & McClure, supra note 75, at 65, quoted in Hunter et al. supra note 61, at 26. The drafters of the Model Penal Code, too, were concerned about a kind of bad psychic stimulation: “Society may legitimately seek to deter the deliberate stimulation and exploitation of emotional tensions arising from the conflict between social convention and the individual's sex drive.” American Law Institute, Model Penal Code, Tentative Draft No. 6 (May 6, 1957), at 30. The drafters further explained that “the guilt-pleasure concept which is central to our definition of prurient interest” is the idea that pornography “‘encourages people to luxuriate in morbid, regressive, sexual-sadistic fantasy and cultivates this morbidity in them, tending to arrest their development.’” Id. at 32, quoting D.W. Abse, Psychodynamic Aspects of the Problem of Definition of Obscenity, 20 L. & Contemp. Probs. 572, 586 (1955).

77. Schiller, supra note 68, at 157–159.

78. Id. at 153–157.

79. This way of stating the problem was suggested in conversation by Charles Taylor.

80. Charles Taylor, Sources of the Self: The Making of the Modern Identity (1989).

81. Pope v. Illinois, 481 U.S. 497, 511 (Stevens, J., dissenting).

82. This is not new, of course; the Western tradition has been divided about the value of art, in general and in particular cases, ever since Plato proposed to banish the poets. See Monroe Beardsley, Aesthetics from Classical Greece to the Present: A Short History (1966).

83. This has been a persistent theme in the scholarship of Amy Adler. See Amy Adler, All Porn All the Time, 31 N.Y.U. Rev. L. & Soc. Change 695 (2007); Adler Amy, The Art of Censorship, 103 W. Va. L. Rev.205 (2000); Adler Amy, What's Left? Hate Speech, Pornography, and the Problem of Artistic Expression, 84 Cal. L. Rev.1499 (1996); Amy Adler, Note, Post-Modern Art and the Death of Obscenity Law, 99 Yale L.J. 1359 (1990).

84. See Alexander Larry, Good God, Garvey! The Inevitability and Impossibility of a Religious Justification of Free Exercise Exemptions, 47 Drake L. Rev.35 (1998).

85. For an answer to Alexander's claim with respect to the protection of religion, see Koppelman Andrew, Is It Fair to Give Religion Special Treatment?, 2006 U. Ill. L. Rev.571; Koppelman Andrew, Secular Purpose, 88 Va. L. Rev.87 (2002).

86. The boundary between art and religion is hardly a sharp one. As Beardsley notes, the value of art reaches quasi-religious importance in Schiller; it is not only a step toward the highest human state, but is a constituent of it. Beardsley, supra note 82, at 229–230. Schiller is hardly the only writer of whom this is true.

87. John Finnis, Natural Law and Natural Rights (1980), at 87.

88. Id.

* Thanks to Larry Alexander, Jack Balkin, Harry Clor, John Finnis, Samuel Fleischacker, Richard Posner, Robert Post, Martin Redish, James Weinstein, and an anonymous reader for Legal Theory for comments on earlier drafts, to Geoffrey Stone and David Strauss for helpful conversations, and to Lindsay Battles, Malini Mukhopadhyay, Kent Schoen, Sean Siekkinen, and my indispensable librarian, Marcia Lehr, for research assistance. Special thanks to Fred Schauer, who read multiple drafts of a paper with which he remains in deep disagreement.

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