Hicklin test

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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. [1] 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. [2]

Contents

History

The modern English law of obscenity began with the Obscene Publications Act 1857, also known as Lord Campbell's Act. [3] Lord Campbell, the Chief Justice of Queen's Bench, introduced the bill, which provided for the seizure and summary disposition of obscene and pornographic materials. The Act also granted authority to issue search warrants for premises suspected of housing such materials. [4]

Regina v Hicklin 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, the official 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. [4] The authorities appealed Hicklin's reversal, bringing the case to the consideration of the Court of Queen's Bench.

Chief Justice Cockburn, on April 29, 1868, 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." [5] Hicklin therefore 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.

The Hicklin test in the United States

Adoption of obscenity laws in the United States was largely due to the efforts of Anthony Comstock. Comstock's intense lobbying led to the passage in 1873 of an anti-obscenity statute known as the Comstock Act. Comstock was appointed postal inspector to enforce the new law. [6] Twenty-four states passed similar prohibitions on materials distributed within the states. [7] The law criminalized not only sexually explicit material, but also material dealing with birth control and abortion. [8] Although lower courts in the U.S. had used the Hicklin standard sporadically since 1868, it was not until 1879, when prominent federal judge Samuel Blatchford upheld the obscenity conviction of D. M. Bennett using Hicklin, that the constitutionality of the Comstock Law became firmly established. [9] In 1896, the Supreme Court in Rosen v. United States , 161 U.S. 29 (1896), adopted the Hicklin test as the appropriate test of obscenity. [10]

However, in 1933, the Hicklin test ended on the federal level when, in United States v. One Book Called Ulysses , 72 F.2d 705 (2d Cir. 1933), Judge John Woolsey found Ulysses to not be obscene. Avoiding the Hicklin test, he said instead that in evaluating obscenity, a court must consider (1) the work as a whole, not just selected passages that could be interpreted out of context; (2) the effect on an average, rather than the most susceptible person; and (3) contemporary community standards. This ruling refuted those who argued against adult possession of material that could hypothetically corrupt a child. [11]

Finally, in 1957, the Supreme Court ruled in Roth v. United States , 354 U.S. 476 (1957) that the Hicklin test was inappropriate. [12] In Roth, Justice Brennan, writing for the majority, noted that some American courts had adopted the Hicklin standard, but that later decisions more commonly relied upon the question of "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." [13] This Roth test became essentially the new definition of obscenity in the United States. [14]

Related Research Articles

Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the US 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.

Comstock laws 1873 U.S. laws prohibiting the dissemination of obscene or contraceptive material

The Comstock Laws were a set of federal acts passed by the United States Congress under the Grant administration along with related state laws. The "parent" act was passed on March 3, 1873, as the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use. This Act criminalized any use of the U.S. Postal Service to send any of the following items: obscenity, contraceptives, abortifacients, sex toys, personal letters with any sexual content or information, or any information regarding the above items.

Obscene Publications Acts United Kingdom legislation

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.

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.

Anthony Comstock American anti-vice activist (1844–1915)

Anthony Comstock was an anti-vice activist, United States Postal Inspector and secretary of the New York Society for the Suppression of Vice (NYSSV), who was dedicated to upholding Christian morality. He opposed obscene literature, abortion, contraception, gambling, prostitution and patent medicine.

Obscene Publications Act 1857 United Kingdom legislation

The Obscene Publications Act 1857, also known as Lord Campbell's Act or Campbell's Act, was a piece of legislation in the United Kingdom of Great Britain and Ireland dealing with obscenity. For the first time, it made the sale of obscene material a statutory offence, giving the courts power to seize and destroy offending material. The Act superseded a 1787 Royal Proclamation by George III titled Proclamation for the Discouragement of Vice. The proclamation commanded the prosecution of those guilty of "excessive drinking, blasphemy, profane swearing and cursing, lewdness, profanation of the Lord's Day, and other dissolute, immoral, or disorderly practices". Prior to this Act, the "exposure for sale" of "obscene books and prints" had been made illegal by the Vagrancy Act 1824. but the publication of obscene material was a common law misdemeanour The effective prosecution of authors and publishers was difficult even in cases where the material was clearly intended as pornography.

Obscene Publications Act 1959 United Kingdom legislation

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 United States 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 phrase "I know it when I see it" is a colloquial expression by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. The phrase was used in 1964 by United States Supreme Court Justice Potter Stewart to describe his threshold test for obscenity in Jacobellis v. Ohio. In explaining why the material at issue in the case was not obscene under the Roth test, and therefore was protected speech that could not be censored, Stewart wrote:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], 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.

United States v. One Book Called Ulysses, 5 F. Supp. 182, is a decision by the United States District Court for the Southern District of New York in a case dealing with freedom of expression. At issue was whether James Joyce's 1922 novel Ulysses was obscene. In deciding it was not, Judge John M. Woolsey opened the door to importation and publication of serious works of literature that used coarse language or involved sexual subjects.

MANual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), is a decision by the United States Supreme Court which held that magazines consisting largely of photographs of nude or near-nude male models are not obscene within the meaning of 18 U.S.C. § 1461. It was the first case in which the Court engaged in plenary review of a Post Office Department order holding obscene matter "nonmailable."

As a legal term in the United States, community standards arose from a test to determine whether material is or is not obscene as explicated in the 1957RA Supreme Court decision in the matter of Roth v. United States. In its 6–3 decision written by William J. Brennan, Jr., the court held that material being obscene depended upon "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." With its emphasis on the reaction of an average person rather than that of an especially susceptible person, the court rejected applying the Hicklin test as a means of determining whether material is obscene, and the ruling represented a liberalization of the nation's obscenity laws.

One, Inc. v. Olesen, 355 U.S. 371 (1958), was a landmark decision of the US Supreme Court for LGBT rights in the United States. It was the first U.S. Supreme Court ruling to deal with homosexuality and the first to address free speech rights with respect to homosexuality. The Supreme Court reversed a lower court ruling that the gay magazine ONE violated obscenity laws, thus upholding constitutional protection for pro-homosexual writing.

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. The word 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.

Quantity of Books v. Kansas, 378 U.S. 205 (1964), is an in rem United States Supreme Court decision on First Amendment questions relating to the forfeiture of obscene material. By a 7–2 margin, the Court held that a seizure of the books was unconstitutional, since no hearing had been held on whether the books were obscene, and it reversed a Kansas Supreme Court decision that upheld the seizure.

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.

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 circulate materials deemed obscene in the U.S. mail. Anderson and Heap incurred a $100 fine, and were forced to cease publishing Ulysses in The Little Review.

Rabe v. Washington, 405 U.S. 313 (1972), was a decision by the United States Supreme Court involving the application of obscenity laws and criminal procedure to the states. On 29 August 1968, William Rabe, the manager of a drive-in movie theater in Richland, Washington, was arrested on obscenity charges for showing the film Carmen, Baby. Due to First Amendment concerns, the local court convicted Rabe not on the basis that the film as a whole was obscene, but that exhibiting it in a drive-in theater was. The Supreme Court reversed the conviction holding that the citizens of Washington State had no notice under the Sixth Amendment that the place where a film was shown was an element of the offense.

Ginzburg v. United States, 383 U.S. 463 (1966), was a decision by the United States Supreme Court involving the application of the First Amendment to Federal obscenity laws. One of a trio of cases, Ginzburg was part of the Supreme Court's attempt to refine the definitions of obscenity after the landmark 1957 case Roth v. United States.

References

  1. ↑ Robert H. E. Bremmer (1 January 1971). Children and youth in America: a documentary history. 1866 - 1932. Harvard University Press. p. 231. ISBN   978-0-674-11612-2 . Retrieved 30 September 2011.
  2. ↑ Craig R. Ducat (29 February 2008). Constitutional Interpretation: Rights of the individual. Cengage Learning. p. 540. ISBN   978-0-495-50324-8 . Retrieved 30 September 2011.
  3. ↑ Drake, Miriam A. (2003). Encyclopedia of Library and Information Science. Vol. Abs–Dec. CRC Press. p. 470. ISBN   978-0-8247-2077-3 . Retrieved 30 September 2011.
  4. 1 2 Bartee, Wayne C.; Bartee, Alice Fleetwood (1992). Litigating morality: American legal thought and its English roots. Greenwood Publishing. pp. 64–65. ISBN   978-0-275-94127-7 . Retrieved 30 September 2011.
  5. ↑ Regina v. Hicklin#Decision  – via Wikisource.
  6. ↑ Michael J. Rosenfeld (2007). The age of independence: interracial unions, same-sex unions, and the changing American family. Harvard University Press. p. 28. ISBN   978-0-674-02497-7 . Retrieved 17 October 2011.
  7. ↑ Kevles, Daniel J. (July 22, 2001). "The Secret History of Birth Control". The New York Times. Retrieved 2006-10-21.
  8. ↑ Joan Axelrod-Contrada (September 2006). Reno v. ACLU: Internet censorship. Marshall Cavendish. pp. 20–21. ISBN   978-0-7614-2144-3 . Retrieved 17 October 2011.
  9. ↑ Janice Ruth Wood (2008). The struggle for free speech in the United States, 1872-1915: Edward Bliss Foote, Edward Bond Foote, and anti-Comstock operations. Psychology Press. pp. 43–45. ISBN   978-0-415-96246-9 . Retrieved 17 October 2011.
  10. ↑ Rosen, at 43
  11. ↑ Sandi Towers-Romero, Media and Entertainment Law (NY: Delmar, Cengage Learning, 2009), 35.
  12. ↑ Robert L. Hilliard; Michael C. Keith (2007). Dirty discourse: sex and indecency in broadcasting. Wiley-Blackwell. p. 5. ISBN   978-1-4051-5053-8 . Retrieved 17 October 2011.
  13. ↑ "Roth v United States, 354 U. S. 476 : Volume 354 : 1957 : Full Text : US Supreme Court Cases from Justia & Oyez" . Retrieved 2011-10-17.
  14. ↑ Robert D. Richards (1 September 1994). Uninhibited, robust, and wide open: Mr. Justice Brennan's legacy to the First Amendment . Parkway Publishers, Inc. pp.  49–51. ISBN   978-0-9635752-4-1 . Retrieved 17 October 2011.

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