Obscenity

AuthorJeffrey Lehman, Shirelle Phelps

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The character or quality of being obscene; an act, utterance, or item tending to corrupt the public morals by its indecency or lewdness.

Obscenity is a legal term that applies to anything offensive to morals and is often equated with the term PORNOGRAPHY. Pornography, however, is a more limited term, which refers to the erotic content of books, magazines, films, and recordings. Obscenity includes pornography, but may also include nude dancing, sexually oriented commercial telephone messages, and scatological comedy routines. U.S. courts have had a difficult time determining what is obscene. This problem has serious implications, because if an act or an item is deemed obscene, it is not protected by the FIRST AMENDMENT.

Until the mid-nineteenth century and the Victorian era in Great Britain and the United States, sexually explicit material was not subject to statutory prohibition. The federal COMSTOCK LAW OF 1873 criminalized the transmission and receipt of "obscene", "lewd", or "lascivious" publications through the U.S. mail. U.S. courts looked to the English case of Regina v. Hicklin, 3 L.R.-Q.B. 360 (1868), for a legal definition of obscenity. The Hicklin test was "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."

This test permitted judges to look at objectionable words or passages without regard for the work as a whole and without respect to any artistic, literary, or scientific value the work might have. In 1930, Massachusetts courts declared both Theodore Dreiser's novel An American Tragedy and D.H. Lawrence's novel Lady Chatterly's Lover obscene. An important break from Hicklin came in a lawsuit over the U.S. publication of James Joyce's novel Ulysses. Both at the trial and appellate levels, the federal courts held that the book was not obscene (United States v. One Book Called "Ulysses", 5 F. Supp. 182 [S.D.N.Y. 1933], aff'd 72 F.2d 705 [2d Cir. 1934]). The courts rejected the Hicklin test and suggested a standard based on the effect on the average reader of the dominant theme of the work as a whole.

In 1957, the U.S. Supreme Court retired the Hicklin test in ROTH V. UNITED STATES, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498. Justice WILLIAM J. BRENNAN JR. stated that obscenity is "utterly without redeeming social importance" and therefore was not protected by the First Amendment. He announced, as a new test, "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient [lewd or lustful] interest." The new test was applicable to every level of government in the United States.

The Roth test proved difficult to use because every term in it eluded a conclusive definition. The Supreme Court justices could not fully agree what constituted "prurient interest" or what "redeeming social importance" meant. Justice POTTER STEWART expressed this difficulty at defining obscenity when he remarked, "I know it when I see it" (Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 [1964]).

The Supreme Court added requirements to the definition of obscenity in a 1966 case involving the bawdy English novel Fanny Hill. In Memoir v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1, the Court concluded that to establish obscenity, the material must, aside from appealing to the prurient interest, be "utterly without redeeming social value", and "patently offensive because it affronts contemporary community standards relating to the

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description of sexual matters." The requirement that the material be "utterly" without value made prosecution difficult. Defendants presented expert witnesses, such as well-known authors, critics, or scholars, who attested to the literary and artistic value of sexually charged...

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