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Freedom of Speech$
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Eric Barendt

Print publication date: 2007

Print ISBN-13: 9780199225811

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199225811.001.0001

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(p.352) X Pornography
Freedom of Speech


Oxford University Press

This chapter seeks to answer the threshold question of whether sexually explicit material should be regarded as speech. If the principle of freedom of speech covers hardcore pornography, then the legislature must produce compelling reasons to justify its proscription; put another way, courts must subject obscenity laws to strict scrutiny to ensure that free speech rights are not infringed. If, on the other hand, hardcore pornography is not speech, the legislature has greater freedom to ban it, although it may decide that is not, all things considered, a sensible course to take. The chapter looks at pornography and its relationship with morality; specific harms that may be caused by pornography, focusing on sexual crimes, harm to children, and harm to women; the ‘offensiveness’ principle of pornography; and how the law should treat pornography for which artistic, literary, or other merit or value is claimed.

Keywords:   freedom of speech, pornography, obscenity, sexual crimes, offensiveness, harm, morality, arts, learning

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