Commentators have criticized the Supreme Court's use of the "two-level" theory of speech to place obscenity beyond the pale of the first amendment. They charge the Court with shirking the task of balancing first amendment values and the states' interests in regulating obscene material. Professor Schauer meets this criticism by examining the meaning of the word "speech" in the context of the purposes of the first amendment and the Constitution as a whole. He concludes that "speech"does not include a category.of obscenity'that performs the function of a surrogate sexual act and is lacking in communicative content. The Court's treatment of obscenity, he maintains, is properly aimed at the isolation of such a category of material and actually operates to safeguard speech at the fringes of the amendment's coverage.
67 Georgetown Law Journal 899-933 (1979)
Schauer, Frederick, "Speech and Speech - Obscenity and Obscenity: An Exercise in the Interpretation of Constitutional Language" (1979). Faculty Publications. 883.