![handle is hein.journals/pnlr123 and id is 59 raw text is: FREE SPEECH AND OBSCENITY LAW:
TOWARD A MORAL THEORY OF THE
FIRST AMENDMENT
DAVID A. J. RICHARDSt
The jurisprudential inquiry into the relation of law and
morals has recently taken a striking new form that promises to
reinvigorate the classical inquiry in a fruitful and controversial
way. In the place of the traditional inquiry into the necessary
logical relations between concepts of law, or legal systems, and
substantive moral values, this new approach starts from the prem-
ise that in America written state and federal constitutions liter-
ally incorporate substantive moral criteria. Thus recent commen-
tary gives voice to the deep intellectual need for a satisfactory
fusion of constitutional law and moral theory in the absence of
which [c]onstitutional law can make no genuine advance.' Con-
currently, it is natural to apply moral theory to the analysis of
particular constitutional provisions. The relation between moral-
ity and constitutional law is not, obviously, an exact one.2 None-
theless, certain provisions of the Constitution, such as the equal
protection clause of the fourteenth amendment, crucially impli-
cate moral ideas so that the analysis of the moral idea funda-
mentally illuminates the interpretation of the constitutional pro-
vision.3
t Associate Professor of Law, Fordham University; Visiting Associate Professor of
Philosophy, Barnard College. A.B. 1966, Harvard University; D. Phil. 1970, Oxford
University; J.D. 1971, Harvard University. Member, New York bar.
Copyright D by David A. J. Richards.
This Article was written under the sponsorship of The Austinian Society, Inc., on
a grant to the Society from the Rockefeller Foundation for a research project in law
and philosophy. Research took place at the Center for the Study of Law and Society,
Berkeley, California, and the Institute for Sex Research, Inc., Bloomington, Indiana.
The author must express his gratitude to the good friends who actively assisted his
research, including Diane Richards, David Leng, and Donald Levy. This paper has
profited from the criticisms of Joel Feinberg, Karlynn Hinman, Paul M. Shupack, John
Bruce Moore, Richard B. Parker, Stanley Paulson, Peter C. Williams, Kenneth I. Winston,
and John Searle.
' Dworkin, The Jurisprudence of Richard Nixon, THE NEW YORK REVIEW OF BOOKS,
May 4, 1972, at 35. See also Dworkin, Legal Research, DAEDALUS, Spring, 1973, at 63.
2 See Richards, Equal Opportunity and School Financing: Towards a Moral Theory of Con-
stitutional Adjudication, 41 U. CHi. L. REv. 32, 32-33, 39-41 (1973).
a For a statement of this analysis, see Richards, supra note 2.
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