11 Unprotected Categories: Obscenity

Obscenity Doctrine Before the Warren Court

The ability of 19th-century governments to punish the commission of “improper” speech included punishment for speech deemed “obscene” by society. While this term was broader during that era than today, obscenity was usually linked to sexual material, particularly the discussion or display of sexual material deemed inappropriate by society. In other words, perhaps more than any other unprotected category, obscenity is regulated because of its content, specifically on the paternalistic basis that encouraging lust harmed the mind or degraded the spirit. Like libel or fighting words, obscenity was also not seen as meaningfully contributing to the exchange of ideas or the democratic process, and thus could be censored without violating these goals.

Importantly, obscenity is a legal category, whose boundaries can expand or contract as courts dictate. One way of framing this—particularly since the Supreme Court took a more active role in the area after 1957—is that all obscenity is pornographic, but not all pornography is legally obscene.

As was sometimes the case in the 19^th century, given their shared legal origins, American judges initially employed an English legal test when asked to determine whether a set of materials was obscene. This 1868 case, Regina v. Hicklin, involved an anti-Catholic pamphlet that set out to attack the Catholic practice of confession. The incendiary pamphlet alleged that priests asked female confessants questions about their sexual behavior, and went on to describe those answers in some detail. The author—Henry Scott—was charged under Britain’s Obscene Publications Act of 1857. On appeal, a magistrate (Hicklin), found that while the pamphlet had obscene components, Scott had intended the pamphlet as a political document, rather than something aimed at corrupting the morals of his readers. The state appealed to the Court of Queen’s Bench, whose judges overturned Hicklin’s ruling and upheld the original conviction. This set of opinions addressed important topics: whether the author’s motive was relevant to an obscenity charge, to what extent a particular work had to contain sexual material in order to be judged obscene, and, most importantly, how obscenity should be defined.

Regina v. Hicklin

L.R. 2 Q.B. 360 (1868)

Facts: Henry Scott sold and distributed an anti-Catholic pamphlet named “The Confessional Unmasked,” which—though primarily aimed as an attack on Catholic practices and confessions—also contained explicit descriptions of sexual concerns discussed during confession (often, the pamphlet claimed, at the instigation of the priests themselves). Scott was charged under Britain’s Obscene Publications Act of 1857. On appeal that the pamphlet was not obscene, Hicklin—a magistrate—held that Scott had not intended to corrupt public morals, and thus did not meet the law’s requirements. The state appealed to the Court of Queen’s Bench.

Question: Did Scott’s Pamphlet meet the definition of obscenity under British law?

Vote: Yes, 4-0

COCKBURN, Chief Judge.

We have considered this matter, and we are of opinion that the judgment of the learned recorder must be reversed, and the decision of the magistrates affirmed…

Now, it is found here as a fact that the work which is the subject-matter of the present proceeding was, to a considerable extent, an obscene publication, and, by reason of the obscene matter in it, calculated to produce a pernicious effect in depraving and debauching the minds of the persons into whose hands it might come. The magistrates must have been of opinion that the work was indictable, and that the publication of it was a fit and proper subject for indictment. We must take the latter finding of the magistrates to have been adopted by the learned recorder when he reversed their decision, because it is not upon that ground that he reversed it; he leaves that ground untouched, but he reversed the magistrates’ decision upon the ground that, although this work was an obscene publication, and although its tendency upon the public mind was that suggested upon the part of the information, yet that the immediate intention of the appellant was not so to affect the public mind, but to expose the practices and errors of the confessional system in the Roman Catholic Church…

In that respect I differ from the recorder. I think that if there be an infraction of the law the intention to break the law must be inferred, and the criminal character of the publication is not affected or qualified by there being some ulterior object in view (which is the immediate and primary object of the parties) of a different and of an honest character…

I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. Now, with regard to this work, it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character…

I take it therefore, that, apart from the ulterior object which the publisher of this work had in view, the work itself is, in every sense of the term, an obscene publication, and that, consequently, as the law of England does not allow of any obscene publication, such publication is indictable… The law says, you shall not publish an obscene work. An obscene work is here published, and a work the obscenity of which is so clear and decided, that it is impossible to suppose that the man who published it must not have known and seen that the effect upon the minds of many of those into whose hands it would come would be of a mischievous and demoralizing character…

This work, I am told, is sold at the corners of streets, and in all directions, and of course it falls into the hands of persons of all classes, young and old, and the minds of those hitherto pure are exposed to the danger of contamination and pollution from the impurity it contains. And for what? To prevent them, it is said, from becoming Roman Catholics, when the probability is, that nine hundred and ninety-nine out of every thousand into whose hands this work would fall would never be exposed to the chance of being converted to the Roman Catholic religion. It seems to me that the effect of this work is mischievous and against the law, and is not to be justified because the immediate object of the publication is not to deprave the public mind, but, it may be, to destroy and extirpate Roman Catholicism. I think the old sound and honest maxim, that you shall not do evil that good may come, is applicable in law as well as in morals…

BLACKBURN, Judge.

I am of the same opinion…

I think with respect to the last clause, that the object of the legislature was to guard against the vexatious prosecution of publishers of old and recognized standard works, in which there may be some obscene or mischievous matter… In Moxon’s Case, the publication of Shelley’s “Queen Mab” was found by the jury to be an indictable offence; I hope I may not be understood to agree with what the jury found, that the publication of “Queen Mab” was sufficient to make it an indictable offence. I believe, as everybody knows, that it was a prosecution instituted merely for the purpose of vexation and annoyance…

The learned recorder, in stating the grounds on which he reversed their decision, says, “About one half of the pamphlet relates to casuistical and controversial questions which are not obscene, but the latter half of the pamphlet is obscene in fact, as containing passages which relate to impure and filthy acts, words and ideas…” Upon that I understand the recorder to find the facts as follows: He finds that one half of the book was in fact obscene… but he finds that the publication would not be indictable at all as a misdemeanor, and consequently that it would not be proper to prosecute it as a misdemeanor; and his reason for thinking it was not indictable as a misdemeanor is this, that the object of the person publishing was not to injure public morality, but with a view to expose the errors of the Church of Rome, and particularly the immorality, as he thought it, of the confessional; and, consequently upon those grounds, the recorder held it was not indictable… although the appellant may have had another object in view, he must be taken to have intended that which is the natural consequence of the act. If he does an act which is illegal, it does not make it legal that he did it with some other object…

To apply that to the present case, the recorder has found that one half of this book is obscene, and nobody who looks at the pamphlet can for a moment doubt that really one half of it is obscene, and that the indiscriminate circulation of it in the way in which it appears to have been circulated, must be calculated necessarily to prejudice the morals of the people…

I do not say there is anything illegal in taking the view that the Roman Catholics are not right. Any Protestant may say that without saying anything illegal. Any Roman Catholic may say, if he pleases, that Protestants are altogether wrong, and that Roman Catholics are right. There is nothing illegal in that. But I think it never can be said that in order to enforce your views, you may do something contrary to public morality; that you are at liberty to publish obscene publications, and distribute them amongst every one – schoolboys and everyone else – when the inevitable effect must be to injure public morality, on the ground that you have an innocent object in view…

MELLOR, Judge.

… I take it for granted that the magistrates themselves were perfectly satisfied that this work went far beyond anything which was necessary or legitimate for the purpose of attacking the confessional. I take it that the finding of the recorder is (as I suppose was the finding of the justices below) that though one half of the book consists of casuistical and controversial questions, and so on, and which may be discussed very well without detriment to public morals, yet that the other half consists of quotations which are detrimental to public morals. On looking at this book myself, I cannot question the finding either of the recorder or of the justices. It does appear to me that there is a great deal here which there cannot be any necessity for in any legitimate argument on the confessional and the like…

LUSH, Judge

I agree entirely in the result at which the rest of the Court have arrived, and I adopt the arguments and the reasonings of my Lord Chief Justice and my Brother Blackburn.

The adoption of this test by U.S. courts coincided with attempts by social and political elites to advance Victorian or religious ideals of public morality, often focusing on sexual materials so as to control or restrain sexual impulses. The New York Society for the Suppression of Vice and its leader Anthony Comstock, for example, was successful in lobbying Congress to pass an anti-obscenity statute in 1873 (the “Comstock Act”) that criminalized distributing obscene or indecent material through the federal mails (as well birth control or sex toys). The law also inspired many similar “Comstock” laws at the state level. When the Comstock Act was challenged at the Supreme Court as a violation of the First Amendment in 1878, the Court unanimously upheld the law, applying the Hicklin test while doing so.

The Hicklin test—particularly as applied initially in the federal courts—permitted censorship of a great deal of speech that today would not be seen as pornographic by most people. Why was this? First, Hicklin focused on individuals who were “most open” to immoral influences, i.e. children. In practice, this meant that states or the federal government could restrict material suitable for adults because it might fall into the hands of children. Second, while Hicklin itself involved a work that was roughly half pornography, the test’s application permitted an entire work to be deemed obscene if a relatively small portion of the whole was found inappropriate. Third, while British law contained some protections, the test’s American application had no carve-out for serious literary, artistic, or scientific work, meaning that material today considered as canonical literature—works by James Joyce, Oscar Wilde, or Henry Miller—could be effectively outlawed in the United States. Fourth and finally, obscenity convictions were often applied against works that—while relating to sex in some fashion—were clearly political rather than pornographic. Feminist works that advocated birth control or abortion were the most frequent targets.

In the 20^th century, the legal environment slowly moved to address these concerns, becoming more protective of speech concerns here as elsewhere. Courts first moved to tighten the definition of obscenity as a category. While obscenity concerns had always centered on depictions of sex, blasphemy prosecutions were sometimes shoehorned in as well, depending on how the relevant statute was written. In the 1950s, however, the Supreme Court made clear that attacks on religion were protected by the First Amendment, and could not properly be categorized as obscene.

Courts also came to reject the argument—available under Hicklin—that a work as a whole could be deemed obscene even if only a small part of it addressed sexual depictions or themes. The most famous such case, a district court decision in New York, involved a challenge to a previous ban of James Joyce’s Ulysses by its publisher. In ruling in favor of the publisher, Judge Woolsey highlighted an ongoing sea-change in how the courts were treating obscenity claims.

United States v. One Book Called “Ulysses”

5 F. Supp. 182 (S.D.N.Y. 1933)

Facts: James Joyce’s novel Ulysses was published serially; after the publication of one chapter which contained sexual content, a leader of the New York Society for the Suppression of Vice (Comstock’s organization) filed a complaint. The post office halted mailings, and the book was later ruled obscene in a 1921 New York state court decision.

In 1933, Random House challenged the ban by having a shipment of books seized by U.S. customs officials (this was a test case since the government did not seize the books until pressured to do so by Random House). The government ultimately moved to confiscate the books, and Random House challenged the action in federal court.

Question: Was Ulysses an obscene work the government could prohibit?

Vote: No

WOOLSEY, District Judge.

… I have read “Ulysses” once in its entirety and I have read those passages of which the government particularly complains several times…

The reputation of “Ulysses” in the literary world, however, warranted my taking such time as was necessary to enable me to satisfy myself as to the intent with which the book was written, for, of course, in any case where a book is claimed to be obscene it must first be determined, whether the intent with which it was written was what is called, according to the usual phrase, pornographic, that is, written for the purpose of exploiting obscenity.

If the conclusion is that the book is pornographic, that is the end of the inquiry and forfeiture must follow.

But in “Ulysses,” in spite of its unusual frankness, I do not detect anywhere the leer of the sensualist. I hold, therefore, that it is not pornographic…

In writing “Ulysses,” Joyce sought to make a serious experiment in a new, if not wholly novel, literary genre. He takes persons of the lower middle class living in Dublin in 1904 and seeks, not only to describe what they did on a certain day early in June of that year as they went about the city bent on their usual occupations, but also to tell what many of them thought about the while…

… another aspect of the book, which I have further to consider, namely, Joyce’s sincerity and his honest effort to show exactly how the minds of his characters operate.

If Joyce did not attempt to be honest in developing the technique which he has adopted in “Ulysses,” the result would be psychologically misleading and thus unfaithful to his chosen technique. Such an attitude would be artistically inexcusable.

It is because Joyce has been loyal to his technique and has not funked its necessary implications, but has honestly attempted to tell fully what his characters think about, that he has been the subject of so many attacks and that his purpose has been so often misunderstood and misrepresented. For his attempt sincerely and honestly to realize his objective has required him incidentally to use certain words which are generally considered dirty words and has led at times to what many think is a too poignant preoccupation with sex in the thoughts of his characters…

Whether or not one enjoys such a technique as Joyce uses is a matter of taste on which disagreement or argument is futile, but to subject that technique to the standards of some other technique seems to me to be little short of absurd.

Accordingly, I hold that “Ulysses” is a sincere and honest book, and I think that the criticisms of it are entirely disposed of by its rationale.

… As I have stated, “Ulysses” is not an easy book to read. It is brilliant and dull, intelligible and obscure, by turns. In many places it seems to me to be disgusting, but although it contains, as I have mentioned above, many words usually considered dirty, I have not found anything that I consider to be dirt for dirt’s sake. Each word of the book contributes like a bit of mosaic to the detail of the picture which Joyce is seeking to construct for his readers.

If one does not wish to associate with such folk as Joyce describes, that is one’s own choice. In order to avoid indirect contact with them one may not wish to read “Ulysses”; that is quite understandable. But when such a great artist in words, as Joyce undoubtedly is, seeks to draw a true picture of the lower middle class in a European city, ought it to be impossible for the American public legally to see that picture?

To answer this question, it is not sufficient merely to find, as I have found above, that Joyce did not write “Ulysses” with what is commonly called pornographic intent, I must endeavor to apply a more objective standard to his book in order to determine its effect in the result, irrespective of the intent with which it was written.

The statute … does not marshal against books the spectrum of condemnatory adjectives found, commonly, in laws dealing with matters of this kind. I am, therefore, only required to determine whether “Ulysses” is obscene within the legal definition of that word.

The meaning of the word “obscene” as legally defined by the courts is: Tending to stir the sex impulses or to lead to sexually impure and lustful thoughts…

Whether a particular book would tend to excite such impulses and thoughts must be tested by the court’s opinion as to its effect on a person with average sex instincts… the same role of hypothetical reagent as … the “reasonable man” in the law of torts…

… reading “Ulysses” in its entirety, as a book must be read on such a test as this, did not tend to excite sexual impulses or lustful thoughts, but that its net effect on them was only that of a somewhat tragic and very powerful commentary on the inner lives of men and women.

It is only with the normal person that the law is concerned. Such a test as I have described, therefore, is the only proper test of obscenity in the case of a book like “Ulysses” which is a sincere and serious attempt to devise a new literary method for the observation and description of mankind.

I am quite aware that owing to some of its scenes “Ulysses” is a rather strong draught to ask some sensitive, though normal, persons to take. But my considered opinion, after long reflection, is that, whilst in many places the effect of “Ulysses” on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac.

“Ulysses” may, therefore, be admitted into the United States.