Origins
The spur for the Act arose from a trial for the sale of pornography presided over by the Lord Chief Justice, Lord Campbell, at the same time as a debate in the House of Lords over a bill aiming to restrict the sale of poisons. Campbell was taken by the analogy between the two situations, famously referring to the London pornography trade as "a sale of poison more deadly than prussic acid, strychnine or arsenic", [9] and proposed a bill to restrict the sale of pornography, arguing that giving statutory powers of destruction would allow for a much more effective degree of prosecution. Lord Campbell, the Chief Justice of Queen's Bench, introduced the bill.
The bill was controversial at the time, receiving strong opposition from both Houses of Parliament, and was passed on the assurance by the Lord Chief Justice that it 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."
The House of Commons amended the bill to exclude Scotland, on the grounds that Scottish common law was sufficiently stringent.
Application of the Act
The Act did not define "obscene", leaving it to the courts to devise a test, based on the common law.
Regina v. Hicklin was heard in 1868 and involved one Henry Scott, who resold copies of an anti-Catholic pamphlet entitled "The Confessional Unmasked: shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession." When the pamphlets were ordered destroyed as obscene, Scott appealed the order to the court of Quarter Sessions. Benjamin Hicklin, a London magistrate who was in charge of such orders as Recorder, revoked the order of destruction. Hicklin held that Scott's purpose had not been to corrupt public morals but to expose problems within the Catholic Church; hence, Scott's intention was innocent. [10] The authorities appealed Hicklin's reversal, bringing the case to the consideration of the Court of Queen's Bench.
Chief Justice Cockburn, Campbell's successor as Lord Chief Justice, reinstated the order of the lower court, holding that Scott's intention was immaterial if the publication was obscene in fact. Justice Cockburn reasoned that the Obscene Publications Act allowed banning of a publication if it had a "tendency ... to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." [11] This test became known as the Hicklin test and allowed portions of a suspect work to be judged independently of context. If any portion of a work was deemed obscene, the entire work could be outlawed.
This interpretation was clearly a major change from Campbell's opinion only ten years before – the test now being the effect on someone open to corruption who obtained a copy, not whether the material was intended to corrupt or offend.
Cockburn's declaration remained in force for several decades, and most of the high-profile seizures under the Act relied on this interpretation.
Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court modifying its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, political, or scientific value". It is now referred to as the three-prong standard or the Miller test.
Since 1857, a series of obscenity laws known as the Obscene Publications Acts have governed what can be published in England and Wales. The classic definition of criminal obscenity is if it "tends to deprave and corrupt," stated in 1868 by Lord Justice Cockburn, in Regina v. Hicklin, now known as the Hicklin test.
John Campbell, 1st Baron Campbell, PC, QC, FRSE was a British Liberal politician, lawyer and man of letters.
Erotic literature comprises fictional and factual stories and accounts of eros intended to arouse similar feelings in readers. This contrasts erotica, which focuses more specifically on sexual feelings. Other common elements are satire and social criticism. Much erotic literature features erotic art, illustrating the text.
Roth v. United States, 354 U.S. 476 (1957), along with its companion case Alberts v. California, was a landmark decision of the Supreme Court of the United States which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment. The Court, in an opinion by Justice William J. Brennan Jr. created a test to determine what constituted obscene material: Whether the average person, applying contemporary community standards would find that the material appeals to a prurient interest in sex, and whether the material was utterly without redeeming social value. Although the Court upheld Roth’s conviction and allowed some obscenity prosecutions, it drastically loosened obscenity laws. The decision dissatisfied both social conservatives who thought that it had gone too far in tolerating sexual imagery, and liberals who felt that it infringed on the rights of consenting adults.
Pornography laws by region vary throughout the world. The production and distribution of pornographic films are both activities that are lawful in many, but by no means all countries so long as the pornography features performers aged above a certain age, usually eighteen years. Further restrictions are often placed on such material.
The Obscene Publications Act 1959 is an Act of Parliament of the United Kingdom Parliament that significantly reformed the law related to obscenity in England and Wales. Prior to the passage of the Act, the law on publishing obscene materials was governed by the common law case of R v Hicklin, which had no exceptions for artistic merit or the public good. During the 1950s, the Society of Authors formed a committee to recommend reform of the existing law, submitting a draft bill to the Home Office in February 1955. After several failed attempts to push a bill through Parliament, a committee finally succeeded in creating a viable bill, which was introduced to Parliament by Roy Jenkins and given the Royal Assent on 29 July 1959, coming into force on 29 August 1959 as the Obscene Publications Act 1959. With the committee consisting of both censors and reformers, the actual reform of the law was limited, with several extensions to police powers included in the final version.
Stanley v. Georgia, 394 U.S. 557 (1969), was a U.S. Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law in the form of mere possession of obscene materials.
The Hicklin test is a legal test for obscenity established by the English case Regina v Hicklin (1868). At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books. The court held that all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit.
Pornography in Europe has been dominated by a few pan-European producers and distributors, the most notable of which is the Private Media Group that successfully claimed the position previously held by Color Climax Corporation in the early 1990s. Most European countries also have local pornography producers, from Portugal to Serbia, who face varying levels of competition with international producers. The legal status of pornography varies widely in Europe; its production and distribution are illegal in countries such as Ukraine, Belarus and Bulgaria, while Hungary is noted for having liberal pornography laws.
R v Butler, [1992] 1 S.C.R. 452 is a leading Supreme Court of Canada decision on pornography and state censorship. In this case, the Court had to balance the right to freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms with women's rights. The outcome has been described as a victory for anti-pornography feminism and the Women's Legal Education and Action Fund, but a loss for alternative sexualities.
Section 63 of the Criminal Justice and Immigration Act 2008 is a law in the United Kingdom criminalising possession of what it refers to as "extreme pornographic images". The law came into force on 26 January 2009. The legislation was brought in following the murder of Jane Longhurst by a man who was said at the time of his trial to have had "extreme pornography" in his possession at the time of the death. The law has been more widely used than originally predicted, raising concerns as to whether the legislation is being used for prosecutions beyond the scope originally envisaged by parliament.
An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. Such loaded language can be used to indicate strong moral repugnance and outrage, in expressions such as "obscene profits" and "the obscenity of war". As a legal term, it usually refers to graphic depictions of people engaged in sexual and excretory activity, and related utterances of profane speech.
The publication of an obscene libel was an offence under the common law of England. Prior to the abolition by section 1 of the Criminal Law Act 1967 of the distinction between felony and misdemeanour, it was regarded as a misdemeanour. It has been abolished in England and Wales and Northern Ireland.
King George III's Royal Proclamation For the Encouragement of Piety and Virtue, and for the Preventing and Punishing of Vice, Profaneness and Immorality exhorted the British public against sexually explicit material. It called for the suppression of all "loose and licentious Prints, Books, and Publications, dispersing Poison to the minds of the Young and Unwary and to Punish the Publishers and Vendors thereof". Groups which promoted it included the Proclamation Society, which became The Society for the Suppression of Vice which was instituted in 1802 to "check the spread of open vice and immorality, and more especially to preserve the minds of the young from contamination by exposure to the corrupting influence of impure and licentious books, prints, and other publications". This had little effect, because they had no power to destroy the material.
R v Peacock was an English Crown Court case that was a test of the Obscene Publications Act 1959. In December 2009, the defendant, a male escort named Michael Peacock, had been charged by the Metropolitan Police for selling hardcore gay pornography that the police believed had the ability to "deprave or corrupt" the viewer, which was illegal under the Obscene Publications Act. He was subsequently acquitted through a trial by jury in January 2012.
United States obscenity law deals with the regulation or suppression of what is considered obscenity. In the United States, discussion of obscenity typically relates to pornography, as well as issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. The States have a direct interest in public morality and have responsibility in relation to criminal law matters, including the punishment for the production and sale of obscene materials. State laws operate only within the jurisdiction of each state, and there are wide differences in such laws. The federal government is involved in the issue indirectly, by making it an offense to distribute obscene pornographic material depicting children through the mail, to broadcast them, as well as in relation to importation of such materials.
R v Penguin Books Ltd was the public prosecution in the United Kingdom of Penguin Books under the Obscene Publications Act 1959 for the publication of D. H. Lawrence's 1928 novel Lady Chatterley's Lover. The trial took place over six days, in No 1 court of the Old Bailey, between 20 October and 2 November 1960 with Mervyn Griffith-Jones prosecuting, Gerald Gardiner counsel for the defence and Laurence Byrne presiding. The trial was a test case of the defence of public good provision under section 4 of the Act which was defined as a work "in the interests of science, literature, art or learning, or of other objects of general concern".
Benjamin Hicklin JP, licensed carrier, farmer, solicitor and Borough Magistrate served as Mayor of Wolverhampton 1859/60.
The obscenity trial over the publication of James Joyce's Ulysses in The Little Review, an American literary magazine, occurred in 1921 and effectively banned publication of Joyce's novel in the United States. After The Little Review published the "Nausicaa" episode of Ulysses in the April 1920 issue of the magazine, the New York Society for the Suppression of Vice instigated obscenity charges against Little Review editors Margaret Caroline Anderson and Jane Heap. The editors were found guilty under laws associated with the Comstock Act of 1873, which made it illegal to send materials deemed obscene through the U.S. Mail. Anderson and Heap incurred a $100 fine, and were forced to cease publishing Ulysses in The Little Review.
