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.