Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment

The jurisprudential inquiry into the relation of law and morals has recently taken a striking new form that promises to reinvigorate the classical inquiry in a fruitful and controversial way.In the place of the traditional inquiry into the necessary logical relations between concepts of law, or legal systems, and substantive moral values, this new approach starts from the premise that in America written state and federal constitutions literally incorporate substantive moral criteria.Thus recent commentary gives voice to the deep intellectual need for a satisfactory fusion of constitutional law and moral theory in the absence of which "[c]onstitutional law can make no genuine advance."'Concurrently, it is natural to apply moral theory to the analysis of particular constitutional provisions.The relation between morality and constitutional law is not, obviously, an exact one. 2 Nonetheless, certain provisions of the Constitution, such as the equal protection clause of the fourteenth amendment, crucially implicate moral ideas so that the analysis of the moral idea fundamentally illuminates the interpretation of the constitutional provision.