Artistic Liberty

Abstract Gerard Bradley has argued in “Prolegomenon on Pornography,” published in 2018 in the Harvard Journal of Law and Public Policy, that “pornography has hijacked our sexuality.” I have sympathy with his treatment of pornography, which is clear-eyed about the pervasive and malign effect of pornography. Nevertheless, my comments here focus not on his treatment of pornography as such, but on his discussion of Butler v. Michigan, in which the Supreme Court overturned a Michigan statute that made it a misdemeanor to distribute materials that contained a “tendency to corrupt” youth, independently of whether they were being sold to youth. In Butler, those materials involved a novel, The Devil Rides Outside, judged by all parties to the case to be of literary merit, but containing passages that were described by the Michigan trial court as lurid. Bradley writes that “The Michigan trial court’s attempt to edit Griffin’s book was, to be sure, risky. But it nonetheless was a good-faith attempt to execute the “balancing” test in a way fair to all and respective of all the pertinent values.” But were, indeed, “all the pertinent values” respected? I have doubts, and in this essay, I attempt to articulate and defend them.