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's 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.