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The Pornography Caper

- Abstract

PRESIDENTIAL COMMISSIONS, as Elizabeth B. Drew once put it in the Atlantic, are often “self-inflicted hotfoots.” The tangled story of the Commission on Obscenity and Pornography serves as a paradigmatic example of the truth of this observation. After documenting that assertion, I shall try to come to grips with the substance of the Report and the data on which it rests. Finally, I want to explore a possible constitutional doctrine that could render moot legislative arguments about what kind of conduct to forbid.

My bias in this essay is that of a lawyer who believes pornography to be a nuisance rather than a menace. Effective legal controls for this nuisance I consider to be a worse nuisance than what they attempt to suppress, which a democratic, open society can ill afford.

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