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Limits of Free Speech

  • In 1948 case Winters v. New York, Supreme Court ruled that the First Amendment protected the distribution of literature lacking literary merit
  • In Winters, the Court also ruled that there was no clear line between information and entertainment

Years before the Court ever dealt directly with the subject of pornography, it wrestled with the limits of the First Amendment. Everyone conceded that the amendment's primary purpose had been to protect political speech, but the boundaries of political speech were hard to identify. Tunis Wortman had suggested as much in 1800. In A Treatise Concerning Political Inquiry and the Freedom of the Press, he had argued that unless people were allowed to "reflect and communicate their sentiments upon every topic," progress in all areas of knowledge would be threatened.53 In 1948, the Court took this logic a step further in Winters v. New York, a case that involved the conviction of a man for distributing sensationalistic crime magazines. "The line between the informing and the entertaining is too elusive for the protection of that basic right," the Court argued. "What is one man's amusement teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature."54

Thus, by 1950 the court had recognized that the First Amendment protected more than political speech narrowly defined. In addition, the court had acknowledged that there was no clear-cut line between the delivery of information and entertainment. It was ready to make the leap to pornography.

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