William & Mary Bill of Rights Journal
Abstract
Controversy has erupted across the country concerning sexually explicit books that are available to children in bookstores, schools, and libraries. Many have called for tough enforcement of obscenity laws, with some saying librarians and schoolteachers who distribute certain books to children should face jail time. Using four controversial books as examples, this Article takes today’s book wars as an opportunity to achieve two things. First, the Article explains the narrow circumstances in which the First Amendment permits the government to block the distribution of books to children due to concerns about the books’ prurient appeal. The Article’s second aim is broader and concerns an issue that has stymied courts in obscenity cases involving children and adults alike for nearly fifty years. In 1973, the Supreme Court held that the First Amendment places sexually explicit expressive works beyond the reach of obscenity restrictions if a reasonable person would say those works possess “serious literary, artistic, political, or scientific value.” When it comes to literary and artistic value, many have assumed the inquiry depends chiefly upon appraisals of aesthetic merit. But the lack of non-controversial criteria for making those appraisals can make that approach deeply problematic. This Article contends that, under the best reading of the First Amendment and the Court’s precedents, classifying a work’s value as literary, artistic, political, or scientific in nature is constitutionally irrelevant and assessments of aesthetic merit are unnecessary. Instead, the serious-value inquiry simply asks whether the author used the work to speak about one or more matters of public concern and whether the author spoke about those matters merely to create a pretext for publishing patently offensive, pruriently appealing content.