In the ongoing culture wars, no area is more controversial than freedom of expression. In the midst of this controversy, it is tempting to appeal to an ideal version of the First Amendment that stands above ideological conflict. As this Essay shows, however, the amendment has always been subject to competing interpretations that are rooted in differing political, social, and cultural views. It follows that the meaning of the First Amendment can never be wholly removed from ideological conflict. But such conflict should not be unbounded. Instead, a central task of constitutional jurisprudence is to develop a common language or framework within which to debate controversial issues. This Essay argues that such a framework can be found in a rights-based theory of the First Amendment. The Essay then applies this approach to the classic cultural conflict in this area—the problem of pornography. The Essay concludes that sexually oriented materials generally should receive First Amendment protection, but that such materials may legitimately be regulated to protect the rights of women and the community as a whole. In this way, the Essay seeks to develop some common ground between the liberal, feminist, and conservative positions on pornography.
Steven J. Heyman,
Ideological Conflict and the First Amendment,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol78/iss2/5