Free Speech Values, Hardcore Pornography and the First Amendment: A Reply to Professor Koppelman

Introduction

Is obscenity doctrine in principle consistent with the rest of the Supreme Court’s free speech jurisprudence? To explore this issue I tried in my main contribution to this symposium to identify a value that was both a core free speech norm and likely to be implicated by the suppression of hardcore pornography. The core value I identified was the equal opportunity of each individual to participate in the speech by which we govern ourselves. That norm, I concluded, would be violated if those interested in distributing hardcore pornography to change society’s sexual mores were forbidden by law from doing so. But I also found that forbidding people from distributing the same material with no intent to influence people’s views but merely to provide sexual stimulation would not violate this or any other core free speech value. I observed further that the Miller test seems to provide First Amendment protection to political use of hardcore pornography. Finally, I considered the possibility that, irrespective of any speaker’s interests that might be implicated, suppression of hardcore pornography might violate the audience interest in democratic participation, but concluded that at least some morally based justifications for suppressing pornography do not offend this value.