Obscenity, Libertarian Values, and Decision Making in the Supreme Court

Abstract

The degree to which the Supreme Court has been willing to support the libertarian claims of obscenity litigation has varied substantially since the High Tribunal first addressed the issue. By the admission of the justices themselves, the law of obscenity has proven to be problematic, at best. In this analysis, a model is developed that accounts for the voting behavior of the justices in obscenity cases. The results suggest that the High Court is especially sensitive to the states' aim of eradicating obscene materials. Although the increased conservatism of the bench has made the justices less prone to vote against the government, there is evidence of support for the liberal position, particularly when the argument is made by some organized interest. The justices, although not necessarily protective of those against whom the government acts, recognize the need to balance the necessity of serving legitimate governmental interests against the potential threat to free expression.