This essay seeks, in a very preliminary way, to explore the constitutional ramifications of a new wave of laws designed to combat pornography. Pornography is not new, of course; and neither are laws designed to curtail it. It has long been prohibited by federal and state statutes. The first state obscenity law was passed in Vermont in 1821, and the first federal statute, which prohibited the importation of obscene materials such as “French post cards,” was enacted in 1842. As early as 1931, in Near v. Minnesota, the Supreme Court announced that obscenity was not entitled to constitutional protection under the First Amendment.

What has changed is the economics of the sex industry, the demography of its constituency, and the nature of the materials themselves. Pornography today is flourishing as never before; by some estimates it is a $7 billion industry.

This seminar is designed to explore the role of the Supreme Court and the First Amendment in protecting, encouraging, and regulating free expression in the United States. Class discussion, readings, (and to the extent possible) individual participant reports, will focus on key doctrinal developments, on the extent to which First Amendment values have become part of the prevailing legal/political culture, on the effectiveness of judicial protection of First Amendment rights, and on contrasting liberal and conservative approaches to defining and implementing First Amendment values.

Since the 1960s consistently, and before that sporadically, the Supreme Court has articulated a liberal theory of the First Amendment which emphasizes the importance of free expression for its own sake as well as its unique instrumental role in the achievement and preservation of other cherished rights.

This article attempts to assess the role of courts and other adjudicative institutions in the definition, interpretation, and management of conflict. Understanding the function of courts requires an understanding of a society's entire range of conflict management mechanisms. Particular emphasis is placed on those variables most likely to determine where and how conflicts will be solved.

Adjudicative institutions can be effectively differentiated by a typology which measures the level of formality in procedures and the degree of “publicness.” The structure of a dispute-resolving institution will have an important effect on which disputes are presented to it and how they are decided. The nature of the dispute, goals of the disputants, social context, and political culture are also important variables.

Government has an important stake in the manner in which disputes arise and are resolved. It may promote or require the resolution of some disputes in the courts while allowing others to be resolved in less public and formal arenas. Formal litigation may provide a model for private dispute resolution. It may also absorb and deflect grievances before they escalate into more organized and intense demands on the political system. Finally, litigation may have an important effect on system stability by promoting support for regime values.