INTRODUCTION

For almost

While the first major obscenity cases were brought before the United States Supreme Court in 1957, censorship of obscenity actually began with the early British and American cases. In order to reflect the posture of the courts in America, this memorandum summarizes selected decisions at the State and Federal district court levels and those of the United States Supreme Court which were significant for formulating definitions of what constitutes obscenity. ninety years, American courts applied a test of obscenity established by a British court in 1868. In 1957, after lower courts in the United States had expanded the British definition, the Supreme Court, in Roth v. United States provided what has come to be known as the "Roth" definition of obscenity. Between 1957 and 1966, the Court added several dimensions to its definition of obscenity. Following its decision in Memoirs v. Massachusetts, which revised the "Roth" definition, the obscenity standard was referred to as the "Roth-Memoirs" test.

The current test of obscenity was framed in 1973 in Miller v. California, wherein Chief Justice Burger announced as "unworkable" the "RothMemoirs" test. 413 U.S. 15, 20-23 (1973). This memorandum reviews not only the Supreme Court's definitions of obscenity but also the development of the procedural safeguards which must be observed by censorship boards in the suppression of obscene materials. other decisions are reviewed below in chronological order.

These and

THE EVOLUTION OF CENSORSHIP OF OBSCENITY THROUGH THE JUDICIAL PROCESS

Attempts to regulate obscene materials have resulted in controversy dating as far back as the seventeenth century with the Licensing Act 1/ 2/ in 1868,

of 1662. However, the English case of Regina v. Hicklin 3/ offered the first judicial standards for obscenity. This case involved the seizure (under 20 & 21 Vict., c. 83, S.1., The Obscene Publications Act of 1857) of a pamphlet entitled "The Confessional Unmasked" which, as a propaganda organ of the Protestant Electoral Union, was an attack on the Catholic Church. Benjamin Hicklin, a local magistrate, found the pamphlet obscene because of its discussions of intercourse (among other objectionable topics). His ruling was reversed by a lower court but was subsequently upheld. In his decision reinstating the magistrate's original order to seize and destroy the pamphlet, Sir Alexander James Edmund Cockburn, C.J., wrote the definition for obscenity which set the precedent for American judicial decisions for nearly 100 years:

the test of obscenity is...whether the tendency...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.4/

Rejecting the defendent's contention that a book cannot be obscene

unless the motive of the publisher was to make it so, the court found

1/Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Prob. 648,650 (1955).

2/L.R. 3Q. B. 360 (1868).

3/45 Miss. L. J. 435 (1974).

4/L.R. 3Q.B. at 371.

that it is immaterial whether or not the book was intended to provide an educational experience. "Obscenity is to be judged by the objective tendency of the material...and not by the motives or intentions of the 5/

author.

While not considered landmarks in the sense that Hicklin is,

subsequent cases revealed that American courts were influenced by the 6/

Hicklin standard.

With the turn of the century, more than 40 years later, dissatisfaction with the Hicklin standard became apparent in the case of 7/

United States v. Kennerly. This case resulted from the publication of a book by Mitchell Kennerly entitled "Hager Revelly." The book is a novel of manners presenting the life of a young woman in New York compelled to earn her living. She is represented as impulsive, sensuous, fond of pleasure, and restive under the monotony and squalor of her surroundings. Her virtue is unsuccessfully assailed by a man she does not love and later successfully by one whom she does. After her. seduction she has several amorous misadventures and ends with a loveless marriage and the prospect of a dreary future. In order to give complete portrayal to the girl's emotional character, some of the scenes are depicted with a frankness and detail which gave rise to the prosecution. Judge Learned Hand heard the case and ruled for the

5/Id. at 371-372.

6/United States v. Bennett, 24 Fed. Cas. 1093, (S.D.N.Y. 1879); United States v. Smith, 45 Fed. 476 (E.D. Wis. 1891); Commonwealth v. Friede, 271 Mass. 318, 171 N.E. 472 (1930); People v. Muller, 96 N.Y. 408 (1884).

7/209 F. 119 (S.D.N.Y. 1913)

State on the basis of the Hicklin decision because it had long been

accepted by lower Federal courts and it would be "no longer proper for 8/

me to disregard it."

However, he added these words in his opinion:

I hope it is not

improper for me to say that the rule as laid down, however consonant
it inay be with mid-Victorian morals, does not seem to me to answer to
the understanding and morality of the present time, as conveyed by the
words, "obscene, lewd, or lascivious." I question whether in the end'
men will regard that as obscene which is honestly relevant to the ade-
quate expression of innocent ideas, and whether they will not believe
that truth and beauty are too precious to society at large to be muti-
lated in the interests of those most likely to pervert them to base uses.
Indeed, it seems hardly likely that we are even to-day so lukewarm in
our interest in letters or serious discussion as to be content to reduce
our treatment of sex to the standard of a child's library in the sup-
posed interest of a salacious few, or that shame will for long prevent
us from adequate portrayal of some of the most serious and beautiful
siles of human nature.

In other words, Judge Learned Hand felt that the Hicklin test was out

of touch with the times and reduced the treatment of sex "to the standard of a child's library". He argued that a modern test should take into consideration the "candor" a contemporary community was willing to

accept and should be based on the "average conscience" rather than 9/

"the lowest, and least capable".

8/Id. at 120.

9/Id. at 121.