by Chris Bridges and Brian Peters
I shall not today attempt further to
define the kinds of material I understand to be [obscene]...; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
--Justice Potter Stewart, 1964.
Sex provokes strong reactions. For some these may be euphoric,
positive reactions, for others a dark and frightened revulsion, and
for most a free-floating tangle of both, at once and in succession.
Not surprisingly, depictions of sex, both visual and written,
inspire particularly heated debate, usually raging over subtle distinctions at the far fringes of humanity's sexual explorations. If you follow the news you may be feeling rather discouraged over the apparently constant attacks on "free speech," especially after the abrupt and seemingly unstoppable explosion of erotic material brought by the Internet. While "protecting the children" and "stomping out filth" have always been dependable ways for politicians to satisfy their constituents, it seems that lately the anarchistic nature of the Internet has brought the censors out of the woodwork. After the Communications Decency Act, the Children's Online Protection Act, and hundreds of local lawsuits, ordinances and prosecutions, it would be only natural to suppose that freedom of expression is in its darkest days. It would also be wildly incorrect.
One of the most difficult lessons every generation must learn is that there is very little new under the sun. We'd like to take a few moments of your time to assure you that sexual free speech is actually freer and less prosecuted in America than it has been for many years.
Common law = common sense, right?
Since most of America's legal system was derived from England's, we'll start there. For a long time there was no official ban on obscenity in England. One wasn't needed. Disputes were resolved by the king and the church and, since talking about sex was generally considered blasphemous to begin with, prosecutions usually resulted in a dead defendant. Church law eventually evolved into the government's legal system, and while there was no clearly defined ban on obscenity, the church's power was still evident and a strict morality prevailed throughout. Soon after the invention of the printing press printing became subject to ecclesiastical and royal control and was a licensed privilege. In 17th century England the crown, the Star Chamber, and Parliament took turns deciding what could be published, and anything that might offend the prevailing concepts of morality and decency was prevented. Officially, anyway.
In 1748 the first volume of John Cleland's Memoirs of a Woman of Pleasure was published and appeared in bookstores with a remarkably small amount of hassle. Complaints were lodged against Cleland and he was required to explain his works to the Secretary of State's office, and that was pretty much the extent of it. By the time an official inquiry was made (some eight months later), an expurgated version was already available, and the whole matter remained fairly calm. It's interesting that the expurgated version seems to have completely disappeared, but the complete Memoirs, known now as Fanny Hill, is considered a classic of pornographic art, and many obscenity trials were still in its future.
Licensing of printing disappeared at the end of the 17th century, but the English courts determined that publishing an obscene book was a common law crime, an act pronounced criminal by the courts rather than by statute. "Obscene book" was not defined. In 1787 George III issued a royal Proclamation urging his subjects to come down hard on creators and purveyors of "licentious Prints, Books, and Publications," but policing continued to be carried out by private agencies. Such groups as the Proclamation Society (later the Society for the Suppression of Vice) had an admirable success rate but little actual effect, partly because literacy was not extremely common anyway, and because while individuals could be prosecuted for obscene material, the courts had no legal power to destroy the material. England didn't acquire a statute aimed specifically against obscenity until the Obscene Publications Act of 1857, also known as Lord Campbell's Act after the magistrate who pushed it. Lord Campbell's Act reaffirmed the Proclamation and permitted the issuance of search warrants on grounds of obscenity.
Those wacky Victorians
Aha, you say. Victorian England, big time censorship, white-wigged prudes everywhere. Actually there was violent and eloquent opposition to this act, with some very familiar objections. Lord Lyndhurst was the first to publically point out the same problem that bothers the courts today: "...but what is the interpretation which is to be put upon the word 'obscene?' I can easily conceive that two men will come to entirely different conclusions as to its meaning." He went on to point out the many great works of art and literature that would come under the shadow of Lord Campbell's Act.
Lord Campbell, for his part, was just as aware of these difficulties and stressed that he had no intention of going after the classics. His bill was "intended to apply exclusively to works written for the single purpose of corrupting the morals of youth, and of a nature calculated to shock the common feelings of decency in any well-regulated mind." Acknowledged classics were okay. Anything with an obvious and single intention to corrupt was banned. And the big grey area was born, filled with works riding the borderline of "pollution" but possessing enough artistic merit to escape Lord Campbell's Act. Lord Campbell's Act had about as much effect as the Proclamation; not much at all.
Eleven years later the Act was reinterpreted by Regina v. Hicklin, a case ruling on the obscenity of a tract entitled "The Confessional Unmasked; Shewing the Depravity of the Romanish Priesthood, the Iniquity of the Confessional and the Questions Put to Females in the Confession". The case resulted in a "test" for obscenity put forth by Lord Chief Justice Cockburn, which went like this: "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." Again, he wasn't after all erotic works, figuring that obscene classics would naturally enjoy enough high repute that charges would never be brought, but he did have an exaggerated optimism concerning how future litigators would use his test. The Hicklin test became the basis of antiobscenity legislation in Britain and the United States for the next 100 years and it still refuses to die.
Porn in the USA
English common law was adopted by the courts of the United States, and the attitude towards obscenity was essentially the same, with an important distinction -- the federal government could leave it up to the states to decide for themselves. The original Constitution contained no guarantee of free speech, that language and numerous other protections are found in twelve amendments, ten1
of which were ratified in 1791, and generally named as the Bill of
Rights. The one we're interested in, the first one, read as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As in England, antiobscenity enforcement was occasional and half-hearted. The first American obscenity conviction didn't occur until 1815 in Pennsylvania and the State Supreme Court had to devise legislation to cover it since none existed at the time. In 1842 a federal statute was created, the Customs Act of 1842, which enabled postal and customs officials to confiscate and destroy material they considered obscene, but it was considered a weapon against creeping perversion from Europe. Even with such an obvious antiobscenity law, actual confiscations were not common or excessive. Only one state (Vermont) had enacted a specific antiobscenity statute by this point. If anything, legislative action against pornography provided better publicity for the material involved than anything the pornographers could afford themselves.
This began to change, as the nineteenth and twentieth centuries produced several driven, obsessive men with big-time agendas. Next month: from Comstock to Meese.
