Document Type
Article
Publication Date
1967
Publication Information
116 U. Pa. L. Rev. 222 (1967-1968)
Abstract
In recent obscenity cases, the Supreme Court has been attempting to define the constitutional meaning of "speech." This is not as banal a statement as it may seem, for there are critics, both on and off the Court, who think that the Court's task is to define "freedom."
Some advocate boundless freedom in this area. For them, obscenity raises no special problems of definition, and is simply an exercise of speech or press presenting dangers which are remote and disputable, rather than clear and present. From this point of view, the only relevant distinction is that between "speech" and "conduct." Obscenity is self-evidently a matter of "expression of ideas" as opposed to "conduct," and so the only remaining question is rhetorical: Does the Constitution permit a line to be drawn between good ideas and bad?
Other critics, however, have refused to be bluffed by rhetorical questions. They would limit freedom of speech only to the extent required by a careful balancing with other values. This tradition demands a strenuous examination of the concept of obscenity in order to reveal the vice it may connote and the values it may threaten. In each individual case, the courts must balance the requirements of free speech against the evils which American society believes will flow from certain expressions of ideas.
Both these schools have tended unreflectingly to tie the problem of obscenity to traditional doctrines developed in the more general context of free speech, for both fallaciously assume that obscenity involves the expression of ideas. Both schools thus fail to discern the core problem of defining "speech," or to appreciate the bedrock concept which underlies the prevailing attempts by the Court to solve this problem. This concept, which stands in sharp contrast to the two traditional perspectives just outlined, is that obscene utterances "are no essential part of any exposition of ideas."
The aim of this article is to sketch the intellectual basis of this newer perspective, to amplify its background, and to indicate the way in which it has shaped the substantive constitutional law on obscenity.
Recommended Citation
John M. Finnis,
Reason and Passion: The Constitutional Dialectic of Free Speech and Obscenity,
116 U. Pa. L. Rev. 222 (1967-1968).
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/439