Discourse & Intercourse: The Logic of the Erotic

The Erotic speaks passionately even when it is silent.

Whatever else may be said of this proposition and its implications­­and we will "say" more about both later­­it is not likely to be held up as a core public value by any worthy system of freedom of expression. In fact, the author of A Worthy Tradition, ⁷ the late Harry Kalven, Jr., spoke to this point when he argued that constitutional protection of speech critical of government is indispensable to a free society although protection of erotic expression is not. ⁸ Kalven's assertion reflects the age­old commitment of Western democratic societies to politics by public reason rather than by private passion.

As long as the First Amendment is rooted in Madisonian soil, the ideal of a democratic state inevitably entails reasoned political discourse. Though there are other free speech values, the traditional concept of the First Amendment would be unrecognizable without some meaningful dedication to the political function of public reason. A well­informed and active citizenry might best maintain a stable and just society through an open exchange of ideas rationally related to the public good. This, at bottom, is the premise typically invoked by jurists and scholars to legitimate American constitutional government.

Witness the testimony of Cass Sunstein concerning "a well­functioning system of free expression.... Following the Madisonian conception, I suggest that such a system is closely connected to the central constitutional goal of creating a deliberative democracy." ⁹ The system promotes "government by discussion," ¹⁰ aiming "to ensure broad communication about matters of public concern among the citizenry at large and between citizens and representatives." ¹¹ Above all, "the system of deliberative democracy is not supposed simply to implement existing desires." ¹² Rising above narrow self­interests, the deliberative citizenry is to define and foster broad­based public interests. Building upon this cornerstone of public reason, John Rawls declares: "[T]he aim of political liberalism is to uncover the conditions of the possibility of a reasonable public basis of justification on fundamental political questions." ¹³

In light of this, why should the free speech system of any deliberative democracy protect pornography? Sunstein's answer is quite simple: "Sexually explicit works can be highly relevant to the development of individual capacities. For many, it is an important vehicle for self­discovery and self­ definition." ¹⁴ This admittedly low­value speech, lying at the periphery of the Madisonian First Amendment, ¹⁵ is nevertheless catapulted up to virtually core constitutional protection on the presumed theory that individual self­realization might contribute ultimately to reasoned public discourse. In this sense, the pornographic experience enriches political expression.