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Obscenity and Community Standards

By Bret Boyce


In the constitutional law of freedom of expression, the treatment of \u22obscenity\u22 is an anomaly. It is a cardinal constitutional principle that speech may not be suppressed merely because it is unpopular or offensive to the community. Indeed, it is precisely where speech gives offense that constitutional protection is most important. As the U.S. Supreme Court has put it, \u22the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker\u27s opinion that gives offense, that consequence is a reason for according it constitutional protection.\u22 Yet offensiveness is precisely the reason (and the constitutional standard) adopted for the suppression of obscenity: \u22Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards.\u22 In general, offensiveness is said to be a reason for according constitutional protection; in the case of \u22obscenity,\u22 offensiveness is said to be a constitutional reason for suppression

Topics: Law
Publisher: Yale Law School Legal Scholarship Repository
Year: 2008
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