Despite the title, this Note does not attempt to articulate a defense of sexually explicit speech. Rather, the effort here is to expose current inconsistencies in First Amendment speech doctrine and to argue that those inconsistencies are the result of the excessive, if not wholly improper, weight given to majoritarian morality when evaluating the regulation of non-obscence sexually explicit speech. Thus, this Note will argue that the Supreme Court's treatment of non-obscene sexually explicit speech in the form of licensing, zoning and nudity regulations has weakened the scrutiny applied to all speech regulations. The Note concludes that, because the assesment of whether or not speech is morally offensive does not turn on any objective content versus noncontent distinction, regulations limiting non-obscene sexually explicit speech should be analyzed as content-based and subjected to strict scrutiny.
Jerrold J. Kippen,
Sexually Explicit Speech,
28 Hastings Const. L.Q. 799
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol28/iss4/3