11 Unprotected Categories: Obscenity
Obscenity Doctrine Before the Warren Court
The ability of 19th-century governments to punish the commission of âimproperâ speech included punishment for speech deemed âobsceneâ 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 thisâparticularly since the Supreme Court took a more active role in the area after 1957âis that all obscenity is pornographic, but not all pornography is legally obscene.
As was sometimes the case in the 19th 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 authorâHenry Scottâwas charged under Britainâs 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 Queenâs Bench, whose judges overturned Hicklinâs ruling and upheld the original conviction. This set of opinions addressed important topics: whether the authorâs 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 âThe Confessional Unmasked,â whichâthough primarily aimed as an attack on Catholic practices and confessionsâalso contained explicit descriptions of sexual concerns discussed during confession (often, the pamphlet claimed, at the instigation of the priests themselves). Scott was charged under Britainâs Obscene Publications Act of 1857. On appeal that the pamphlet was not obscene, Hicklinâa magistrateâheld that Scott had not intended to corrupt public morals, and thus did not meet the lawâs requirements. The state appealed to the Court of Queenâs Bench.
Question: Did Scottâs 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 affirmedâŚ
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 ChurchâŚ
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 characterâŚ
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 characterâŚ
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 characterâŚ
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 moralsâŚ
BLACKBURN, Judge.
I am of the same opinionâŚ
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 âQueen Mabâ 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 âQueen Mabâ 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 annoyanceâŚ
The learned recorder, in stating the grounds on which he reversed their decision, says, âAbout 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 ideasâŚâ 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 objectâŚ
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 peopleâŚ
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 viewâŚ
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 likeâŚ
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.
Questions
1. In the third paragraph of the excerpt, Chief Judge Cockburn announces the courtâs test for obscenity: âwhether 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.â Cockburn is also clearly concerned about the impact of such material on children and adolescents.
What would be the practical impacts of applying this test in todayâs United States? What sorts of material might be subject to criminal punishment by the states?
20th century U.S. courts ultimately abandoned this test. Why, do you think, might they have done so?
2. The Hicklin judges also address the issue that Scottâs pamphlet was both a political document and a pornographic one, with about one-half of the pamphlet devoted to each. Does the fact that the pamphlet was half political argument mean that it deserves protection? Or does the fact that it was about half obscene descriptions mean itâs better characterized as pornography?
If you read a book or watched a television show today with roughly the same fraction of political themes and sex scenes, how would you categorize it? What problems might such determinations raise for content creators and free speech in general?
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 âComstock Actâ) that criminalized distributing obscene or indecent material through the federal mails (as well birth control or sex toys). The law also inspired many similar âComstockâ 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 testâparticularly as applied initially in the federal courtsâpermitted 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 âmost openâ 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 testâs 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 testâs American application had no carve-out for serious literary, artistic, or scientific work, meaning that material today considered as canonical literatureâworks by James Joyce, Oscar Wilde, or Henry Millerâcould be effectively outlawed in the United States. Fourth and finally, obscenity convictions were often applied against works thatâwhile relating to sex in some fashionâwere clearly political rather than pornographic. Feminist works that advocated birth control or abortion were the most frequent targets.
In the 20th 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 argumentâavailable under Hicklinâthat 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 Joyceâs 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 âUlyssesâ
5 F. Supp. 182 (S.D.N.Y. 1933)
Facts: James Joyceâs 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 (Comstockâs 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 âUlyssesâ once in its entirety and I have read those passages of which the government particularly complains several times…
The reputation of âUlyssesâ 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 âUlysses,â in spite of its unusual frankness, I do not detect anywhere the leer of the sensualist. I hold, therefore, that it is not pornographicâŚ
In writing âUlysses,â 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 whileâŚ
⌠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 âUlysses,â 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 âUlyssesâ 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, âUlyssesâ 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 âUlyssesâ; 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 âUlyssesâ 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 âUlyssesâ is obscene within the legal definition of that word.
The meaning of the word âobsceneâ as legally defined by the courts is: Tending to stir the sex impulses or to lead to sexually impure and lustful thoughtsâŚ
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 âreasonable manâ in the law of tortsâŚ
⌠reading âUlyssesâ 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 âUlyssesâ 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 âUlyssesâ 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 âUlyssesâ on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac.
âUlyssesâ may, therefore, be admitted into the United States.
Questions
1. How does Woolseyâs consideration of authorial intent differ from the analysis in Hicklin?
2. Woolsey notes that pornography could be defined as an âaphrodisiac.â The metaphor of pornography as a drug is a useful one to those who wish to regulate it, as it creates a different framing than classifying pornography as speech.
Is it reasonable to use this metaphor? Isnât the case that individuals can become addicted to pornography? Or is this metaphor dangerous? Could other, non-sexual speech be similarly categorized? Are there other types of âaddictions,â say, for social media? Is the governmentâs job to protect us from such potential harms?
3. This opinion uses âtends to lead to sexually impure and lustful thoughtsâ as a definition of obscenity. Do you find this a useful definition? Does it separate what you might consider ârealâ art, literature, etc. from something you would think of as pornography?