STUDENT NOTE: ASSESSING THE NON-COGNITIVIST DEFENSE OF THE SUPREME COURT'S OBSCENITY DOCTRINE

Legal academics have criticized the U.S. Supreme Court’s obscenity doctrine as unprincipled, vague, and obsolescent.1 Developed during the middle of the last century,2 when norms around sexuality were undergoing rapid change,3 the doctrine represents the Court’s attempt to accommodate the new sexual frankness while preserving one of the “historic and traditional” exemptions from First Amendment coverage.4 As such, the doctrine can be viewed as a kind of uneasy settlement between competing interests: on the one hand, an increasingly sexually libertarian society’s appreciation of the cultural, scientific, and political value of frank depictions of sexuality;5 on the other hand, a traditional concern with the “corrupting and debasing impact[s]” of the “commerce in . . . [or] public exhibitions [of]” obscenity.6 Judging by the weight of scholarly opinion, that settlement was a failure. However, the doctrine is not wholly without its academic champions. One of the most prominent is—or at least, was—Frederick Schauer.7 In an article and much-admired book, Schauer argued that the Court’s doctrine “naturally flows” from a plausible underlying account of free speech.8 His is still widely considered one of doctrine’s best defenses.9 In this article, I will show that it is still a fruitful point of departure for a philosophical and doctrinal examination of the obscenity doctrine.