The Three Conundrums: Doctrinal, Theoretical, and Practical Confusion in the Law of Sexually Explicit Speech

In First Amendment law, one rarely disputed notion is that sexually explicit speech is less valuable than so-called “core” forms of expression, such as political discourse. This study revives that dispute with a focus on the Supreme Court’s justifications for categorizing sexually explicit speech as “low-value” in the first place. The analysis reveals three conundrums plaguing the Court’s jurisprudence: categorizing restrictions on sexually explicit speech; interpreting the value and harms of sexually explicit speech; and assessing the evidence (or lack thereof) for restrictions on sexually explicit speech. This article explains how these conundrums should be resolved in sexually explicit speech cases with an emphasis on adopting an analytical framework that requires substantiation similar to intermediate constitutional scrutiny as in commercial speech cases

Porn Wars: Serious Value, Social Harm, and the Burdens of Modern Obscenity Doctrine

During the 1980s, anti-pornography ideologues—an unlikely alliance of feminist activists and right-wing evangelical Christians—waged an open war against pornography and the anti-censorship feminists who supported legal protection for pornographic works. Following a pivotal defeat of an anti-pornography ordinance in federal court, the ideologies constituted in the so-called “Porn Wars” continued to guide obscenity doctrine. These ideologies have informed lower courts’ understanding of the harms and values associated with sexually explicit content more than constitutional scholars recognize, at least explicitly. Although courts recognize core feminist values such as sexual autonomy and privacy in sexually explicit content, they have built doctrine that essentially forestalls the exchange of sexual content, even among consenting adults in private and quasi-private spaces. Anti-pornography presumptions of harmful effects predominate lower court decisions in ways that could produce disastrous consequences for artistic speech, privacy, and even public health

Porn Wars: Serious Value, Social Harm, and the Burdens of Modern Obscenity Doctrine

During the 1980s, anti-pornography ideologues—an unlikely alliance of feminist activists and right-wing evangelical Christians—waged an open war against pornography and the anti-censorship feminists who supported legal protection for pornographic works. Following a pivotal defeat of an anti-pornography ordinance in federal court, the ideologies constituted in the so-called “Porn Wars” continued to guide obscenity doctrine. These ideologies have informed lower courts’ understanding of the harms and values associated with sexually explicit content more than constitutional scholars recognize, at least explicitly. Although courts recognize core feminist values such as sexual autonomy and privacy in sexually explicit content, they have built doctrine that essentially forestalls the exchange of sexual content, even among consenting adults in private and quasi-private spaces. Anti-pornography presumptions of harmful effects predominate lower court decisions in ways that could produce disastrous consequences for artistic speech, privacy, and even public health