Speech and Speech - Obscenity and Obscenity: An Exercise in the Interpretation of Constitutional Language

Commentators have criticized the Supreme Court\u27s use of the two-level theory of speech to place obscenity beyond the pale of the first amendment. They charge the Court with shirking the task of balancing first amendment values and the states\u27 interests in regulating obscene material. Professor Schauer meets this criticism by examining the meaning of the word speech in the context of the purposes of the first amendment and the Constitution as a whole. He concludes that speech does not include a category.of obscenity\u27that performs the function of a surrogate sexual act and is lacking in communicative content. The Court\u27s treatment of obscenity, he maintains, is properly aimed at the isolation of such a category of material and actually operates to safeguard speech at the fringes of the amendment\u27s coverage