This essay will reconsider the fundamentals of obscenity law: the harm that the law addresses and the means by which the law tries to prevent that harm. Strangely, even though an enormous amount of scholarship examines this doctrine, these fundamentals have not been adequately addressed. The harm that the doctrine seeks to prevent is not offense to unwilling viewers. It is not incitement to violence against women. It is not promotion of sexism. Rather, it is moral harm - a concept that modern scholarship finds hard to grasp. Liberals have not even understood the concept of moral harm, and so their arguments have often missed the point of the laws they were criticizing. Conservatives have understood the concept quite well, but have thought that it straightway entailed censorship. This essay is, to my knowledge, the first presentation of the liberal argument that does justice to the conservative case for censorship. I will argue that the concept is a coherent one and that obscenity law tries to prevent a genuine evil. But I will conclude that the law is too crude a tool for the task. A sound understanding of obscenity law's ambitions reveals that the doctrine is unworkable and should be abandoned.
Date of this Version
Andrew Koppelman, "Does Obscenity Cause Moral Harm?" (February 2005). Public Law and Legal Theory Papers. Working Paper 6.