The Apologetics of Suppression: The Regulation of Pornography as Act and Idea

The first three parts of this article discuss in detail the relationship between the Supreme Court\u27s obscenity rulings and the academic theories that have been offered to bolster the conclusions reached by the Court in this area. Part IV of the article considers a contrary theory of free expression that requires constitutional protection for the dissemination and possession of pornography. In this section I argue that the present efforts to ban pornography are directly linked to a tolerance model of free expression. The tolerance model, which is usually contrasted with an analytical approach characterized by Holmesian skepticism, necessarily relies upon some theory of moral certainty. Given the assertion that definitive moral knowledge can be obtained, the repressive aspect of the tolerance model becomes clear; speech is permitted only to the extent that it serves a positive social function, as judged by the moral arbiters lodged in the courts or the legislatures

The Procedural Annihilation of Structural Rights

For several years, the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called structural rights. The term structural rights describes constitutional provisions that are designed to protect the basic nature of democratic government. These provisions constrain the power of the elected branches of government, preserve citizen autonomy, and otherwise ensure that political winners in the democratic process do not use their power in ways that undermine the democratic structure of government in the long term. The negative effects on structural rights of the Court\u27s recent limitations on judicial authority are important because the usual justification the Court gives for these limitations involves the need for judicial restraint and deference to the elected branches of government. This is essentially a claim that the exercise of judicial authority in these circumstances is antidemocratic. The central thesis of this Article is that judicial restraint in the face of structural rights claims has exactly the opposite characteristic because in a case raising structural rights claims the current government is disempowered from doing certain things precisely to preserve the democratic structure of government. Thus, the Article concludes somewhat paradoxically that courts must be given the authority to enforce structural rights against the violations of those rights by the elected branches not in spite of democracy, but rather because of it