Bret Boyce

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In the constitutional law of freedom of expression, the treatment of "obscenity" is an anomaly. It is a cardinal constitutional principle that speech may not be suppressed merely because it is unpopular or offensive to the community. Indeed, it is precisely where speech gives offense that constitutional protection is most important. As the U.S. Supreme Court has put it, "the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection." Yet offensiveness is precisely the reason (and the constitutional standard) adopted for the suppression of obscenity: "Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards." In general, offensiveness is said to be a reason for according constitutional protection; in the case of "obscenity," offensiveness is said to be a constitutional reason for suppression.

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