Law Review: Madisonian Pornography Or, The Importance of Jeffrey Sherman

Madisonian Pornography Or, The Importance of Jeffrey Sherman
Andrew Koppelman, 84 Chi.-Kent L. Rev. 597 (2009)

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For over a century, lawyers and scholars have debated whether pornography is protected by the free speech principle. In this essay, I will show why Jeffrey Sherman’s 1995 article, Love Speech: The Social Utility of Pornography, makes a major contribution to this debate, even though it never explicitly addresses it.

I will begin with the fundamentals of free speech theory. Why is there free speech protection at all? I will describe the classic answer to this question developed by James Madison. Then I will rebut the narrow construction of Madison’s argument that was once proffered by Robert Bork. I will show why Madison’s argument reaches toward, but does not fully defend, a right to pornography. Then I will show why Sherman’s work completes the Madisonian argument.