Pornography Commissions and the First Amendment: On Constitutional Values and Constitutional Facts

The interlinked questions of free speech, obscenity, and pornography are contextually sensitive—as are many other great issues of constitutional principle—to both normative and factual arguments; that is, much of the disagreement in the discussion of these questions centers on the proper interplay of constitutional values and facts. To what extent, for example, should constitutional values be sensitive to empirical research about the consequences of pornography distribution and use? If sensitive at all, how sensitive? Must the state, for example, satisfy a heavy burden of justification in terms of showing harm caused if it is to abridge pornography distribution and use, or may it show a much weaker case? If weaker, how much weaker? May anything count as an appropriate justification, or do constitutional values impose at least some constraints on what may count as a justification at all? This cluster of questions has now come very much to the forefront of serious constitutional discussion of free speech, obscenity, and pornography because the Final Report of the Attorney General's Commission on Pornography (hereinafter Commission Report), published July 1986, has put its argument much in these terms. The Commission Report argues that a quite light burden of justification is required to support the abridgement of access to pornographic materials, and that this burden of justification is satisfied by the evidence the Commission gathered concerning the harm caused by pornography distribution.