Free Speech: The "Missing Link" in the Law of Obscenity
Loewy, Arnold H.
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Q: Aren’t you glad that the Supreme Court has recognized that obscenity is not speech within the meaning of the first amendment and as such is not constitutionally protected? A: I most certainly am not! It seems to me that the Court’s failure to recognize obscenity as free speech is the “missing link” in the law of obscenity. This article is a dialogue between these opposing positions on the wisdom of the Supreme Court’s refusal to classify obscenity as speech under the first amendment. The first section of the article proposes that “The Scales of Justice Will Not Balance with False Weights on Either Side.” Section two discusses potential state interests in banning obscene material, while section three discusses potential Constitutional interests in freedom of speech. Section four urges the Court to strike a proper balance between potential state interests in banning obscene material and freedom of speech. Professor Loewy concludes by urging the Supreme Court to recognize obscenity as speech. As a form of speech, Loewy contends that obscenity should be constitutionally protected unless some legitimate state interest justifies its infringement.