The conventional history of obscenity and pornography in America begins about one hundred thirty years ago with the passage of the Comstock Act in 1873, which banned obscene literature from the mail. (1) A resulting climate of sexual repression prevailed until the middle of the twentieth century, when the United States Supreme Court's decision in Roth v. United States, (2) and later in Miller v. California, (3) loosened restrictions on the sale of sexually explicit material to adults. The standard narrative picks up again in the late twentieth century with the efforts of feminist theorists and activists Catharine MacKinnon and Andrea Dworkin to suppress pornography as a violation of women's civil rights. (4) It ends with present-day controversies over the flood of sexually explicit images on the Internet and panic over child pornography. (5)
However, a significant untold history of both sexual representation and obscenity prosecution precedes the usual starting point of this narrative. (6) This early history helps to explain how pornography emerged as a cultural and economic phenomenon in American life. (7) It also offers valuable perspectives on the meaning and function of obscenity law, fundamental issues that continue to bedevil American law and policy. In particular, the legal history offered here illuminates the ways in which obscenity prohibitions often encouraged, rather than suppressed, the growth of an American pornography trade. (8) It also demonstrates the significant role that obscenity law played in shaping commercial and cultural constructions of sexual desire.
Part I of this Article provides a brief summary of the doctrine of obscenity as it arose in English common law and developed in the United States in the first half of the nineteenth century. In essence, nineteenth-century American jurists, following the lead of English treatise writers, routinely asserted that government officials had the authority to suppress any speech or conduct that had a tendency to corrupt public morality, including the authority to punish the sale of "obscene" publications. Relying solely on these elite expressions of law and on the language of state statutes that purported to regulate morality, one might well conclude that state and local governments seamlessly exercised the power to police morality and suppress indecency in nineteenth-century America. (9)
But fully understanding the operation of obscenity law in American culture and society requires looking beyond formal law. (10) Part II therefore examines the ways in which obscenity doctrine was applied "on the ground" in the context of specific criminal prosecutions involving the sale of obscene books in New York City between the early 1840s, when significant numbers of obscenity cases first arose, and the start of the Civil War in 1861. This discussion relies heavily on data compiled from the unpublished District Attorney Indictment Papers for the principal criminal court in New York County at that time, the Court of General Sessions. (11)
New York City provides a natural focal point for this inquiry for several reasons. By the middle of the nineteenth century, it was not only the largest city in the United States; it was also the site of the country's principal financial, manufacturing, and cultural institutions. (12) In addition, in the decades leading up to the Civil War, New York established itself as a communications capital, pushing aside its chief rivals, Boston and Philadelphia, to lead the nation's burgeoning publishing industries. (13) Most importantly for this Article, by the start of the Civil War, New York had emerged as the headquarters for an ambitious, entrepreneurial network of publishers who pioneered the production and marketing of sexual writing in the United States. The city's preeminence in the field of sexually stimulating publications was widely recognized by the early 1860s, when its publishers and dealers earned national notoriety for exploiting the escalating demand for mail-order erotica among Civil War soldiers. (14)
In an effort to delineate the early meaning of obscenity, Part II goes on to explore a wide range of non-legal primary sources, including rare surviving examples of erotica, pulp fiction, popular guides to health, anatomy, and reproduction, moral reform tracts, and advertising circulars of publishers who specialized in pornography. Together with evidence from obscenity indictments, these documents clarify how government officials in the antebellum era first drew the boundaries between illicit, "obscene" speech and indecent, but legally permissible (i.e., non-"obscene") speech. In particular, they reveal the type of representation that lay at the heart of antebellum constructions of the obscene, namely, overt depictions of female passion and pleasure. At the same time, they show that government authorities generally tolerated several other forms of writing that many mid-nineteenth-century moral reformers vociferously condemned as indecent and immoral. Examples of genres that escaped prosecution for obscenity include health manuals that provided advice on birth control and abortion and sensational novels that combined graphic violence with euphemistic sex.
Part III analyzes the social, economic, and cultural consequences that attended the rise of obscenity prosecutions. (15) This section demonstrates that, rather than eradicating lewd writing, legal restrictions on obscenity paradoxically promoted the proliferation of erotic representations in at least three distinct ways. First, obscenity prosecutions inspired entrepreneurial publishers of illicit sexual literature to turn to new methods of interstate advertising and distribution via the U.S. mail. Designed to circumvent local regulation, these strategies had the additional effect of extending markets for erotica across the nation. Second, obscenity prosecutions spurred the production of new genres of sexually stimulating publications. These innovations included America's first pornographic periodical, which sought to profit from legal prohibitions on female eroticism by disseminating forbidden stories of independent, sexually assertive women to mail-order customers throughout the United States. They also included luridly sensational, so-called "racy" novels, which self-consciously skirted the perceived border of obscenity and eroticized graphic violence as a substitute for illicit depictions of sex. Third, obscenity cases generated valuable publicity for New York's erotic publishing industry just as it was establishing itself as a new medium of commerce and communication. Each of these developments subverted the formal power of antebellum governments to suppress indecent publications, even while treatise writers and other legal commentators championed state authority to restrict such commerce under the law of obscenity.
THE DOCTRINE OF OBSCENITY
Throughout the nineteenth century, elite sources of American law made sweeping doctrinal pronouncements declaring that states and localities had inherent power to regulate morality. (16) Treatise writers frequently cited the suppression of indecency through the prosecution of obscene speech as a paradigm of morals regulation. (17)
A major source for obscenity doctrine in the United States was the English common law of obscene libel. In England, the King's Bench first recognized obscenity as an offense in 1727. (18) The occasion was the conviction of the notorious British pornographer Edmund Curll for printing Jean Barrin's anti-Catholic novel about a group of sexually overheated nuns, seductively entitled Venus in the Cloister; or The Nun in her Smock. (19) Over the next century, English jurists developed a broad definition of obscene libel. Francis Ludlow Holt, a leading English authority on libel, included a chapter on "Libels Against Morality and the Law of Nature" in his landmark treatise, The Law of Libel. As a general matter, Holt explained, an "indictment at common law may be supported for any offence which is against public morals, decency, and good manners." (20) Obscene libel, by extension, "comprehended every species of representation, whether by writing, by picture, or by any manner of sign or substitute, which is indecent and contrary to public order and natural feeling." (21) While blasphemous and seditious libel were understood as attacks on religion and the state, respectively, an obscene representation was perceived as an affront against "public decency," "public order," and "natural feeling." As another nineteenth-century English authority described the wide-ranging offense of obscene libel, "[i]t is now fully established, that any immodest and immoral publication, tending to corrupt the mind, and to destroy the love of decency, morality, and good order, is punishable." (22)
In the United States, as early as the second decade of the nineteenth century, appellate courts began to cite the English common law of obscenity with approval. In 1811, James Kent, chief judge of the Supreme Court of New York, wrote a widely admired opinion in People v. Ruggles (23) upholding the importation of English common-law doctrines that enabled state and local authorities to punish immoral speech. Although Ruggles dealt specifically with blasphemy, Kent warmly sanctioned prosecutions against other publications "which corrupt moral sentiment," such "as obscene actions, prints and writings." (24) In rejecting the claim that New York's republican form of government and constitutional protection for religious liberty prevented criminal charges for blasphemy, Kent's opinion invoked a fundamental opposition between liberty and license. (25) By classifying blasphemy and obscenity as dangerous forms of "license" or "licentiousness," Kent justified suppression of immoral speech as a vehicle for preserving, rather than threatening, republican liberty.
Soon thereafter, the highest courts of Pennsylvania and Massachusetts...