next decade, beginning in 1957, a series of court decisions began to remove restrictions on purportedly obscene literature. At the apex of legal tolerance, in 1966, the ban was finally lifted from John Cleland’s 1749 novel Fanny Hill: Memoirs of a Woman of Pleasure, which had been, in 1821, the object of America’s first known obscenity case.
Obscenity laws are concerned with prohibiting lewd or sexually charged words or pictures, and with determining what role the government should have in regulating what people should read and see. The U.S. Supreme Court has always held that the First Amendment does not protect obscene material that would present a clear and present danger to society. The problem is that there have always been disagreements about what constitutes obscenity. There is still a lack of clarity around the meaning of the words “indecent,” “filthy,” “lewd,” “lascivious,” and “obscene.” Justice Potter Stewart memorably epitomized the problem when he admitted that he couldn’t define “obscenity” but “I know it when I see it.” In current Internet cases, deliberations of the Supreme Court focus on these same definitions. What is meant by “indecent”? Which “community” is being offended? These questions are still not resolved.
The intent of the authors of the Bill of Rights was to withhold the power to censor from the national government. Thus, the First Amendment: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press …” The idea was to leave decisions in these matters to the individual states. Today, American obscenity law is a patchwork of court decisions, made up of old British common law, federal, state, and local laws, as well as U.S. Customs and U.S. Postal Service regulations.
The law is not set in stone; it does not march in a straight line toward ever more liberty for all. Minority opinions remain on the record and decisions are subject to revision and change over time. New concepts are introduced; old precedents are weakened. The resulting laws may be more liberal and tolerant or they may support greater authoritarian control. By the time of the Howl trial, a century of obscenity prosecutions had produced a complex maze of contradictory decisions.
In spite of the standards set by Supreme Court rulings, books are still being challenged and banned at the local level, in schools and libraries across the country. Nearly every week somewhere in this country parents or religious organizations attempt to take a library book off a shelf or ban a book from a school curriculum. Often people take notice of banned books, protest, and the proscription is lifted. Sometimes nobody speaks up and the banned book stays banned. For better or for worse, the legal system depends on and is shaped by citizen involvement.
The American Library Association and the American Booksellers Association monitor challenged books and fight for the right to read educational and literary works of merit. The ALA reports that during the last twenty years, the themes most likely to arouse the censorious (in order of the number of complaints) are sexual explicitness, offensive language, occultism and Satanism, promotion of homosexuality, violence, anti-family values, and subject matter offensive to religion. Titles that almost always head the list of “dangerous” books are Slaughterhouse Five by Kurt Vonnegut (promoting deviant sexual behavior, sexually explicit), Forever by Judy Blume (sexual references), Catcher in the Rye by J.D. Salinger (sexual references, undermines morality), John Steinbeck’s Grapes of Wrath (vulgar language), and Of Mice and Men (filth), Harry Potter by J.K. Rowling (anti-Christian Satanism), I Know Why the Caged Bird Sings by Maya Angelou (language and themes), and Toni Morrison’s The Bluest Eye (language). A couple of classics that made recent lists are Chaucer’s Canterbury Tales (lewdness) and Shakespeare’s Twelfth Night (teaching alternative lifestyles).
Throughout the world, established institutions have tried to exert religious and government control over what people read. Today, sex is the big issue. However, in the past heresy and treason were the principal targets of the censors; if obscenity was a contributing factor in these crimes, the offense was worse and the punishment greater. As Gutenberg’s invention of the printing press enlarged the potential readership for books, it also removed the written word from the control of church and state. As literacy spread, so did the danger of people thinking for themselves. The first printed book banned in England was William Tyndale’s 1525 translation of the New Testament from Latin into the English. In 1536 Tyndale was imprisoned and burned at the stake along with those dangerous books that people might interpret without mediation by church and state.
Today, globalization, mass emigration, and electronic communication exert similar pressures on instilled cultural values in many parts of the world. To maintain control, governments and religious vigilantes alike respond. In 1987 the Salman Rushdie case shocked the world. Iranian authorities not only banned The Satanic Verses for blasphemy and obscenity but also issued a fatwa, condemning the author to death and putting a $2,500,000 price on his head. Closer to home, our own fundmentalists pursue their particular censorious agendas.
Historically, the Catholic Church persecuted early books and engravings of an obscene nature in the ecclesiastical courts of Europe; however, British secular authorities paid scant attention until the Victorian era. Bawdy poems, pornographic novels, erotic prints and etchings were freely circulated. It wasn’t until the mid-19th century that concern began to grow about the effect of sexually explicit materials on the “public welfare.”
In 1868, a case called Queen (Regina) v. Hicklin was heard in London. The decision, which became known as the Hicklin Rule, was that “the test of obscenity is whether the tendency of the matter charged is to deprave and corrupt those whose minds are open to such immoral influences,” specifically, women, children, and the weak of mind. It allowed a publication to be judged on isolated passages of a work considered out of context and judged by their apparent influence on those presumed to need protection from sexually charged material. U.S. law is modeled on and incorporates much British law, so for many years the Hicklin Rule continued to echo through the American judicial system, even in the Howl case (1957) and the Communications Decency Act (1997).
Although “immoral” behavior was subject to trial and punishment in the American colonial era and the first century of independence, there were no laws prohibiting the expression of ideas about sex. Benjamin Franklin, for instance, wrote literary ribaldries that a century and a half later would have been, in all likelihood, condemned as obscene.
It wasn’t until after the Civil War that, among various reform movements, there arose a moral purity movement committed to abolishing vice and obscenity. The leader of this movement, Anthony Comstock, was a fanatic crusader whose mission was to stamp out sex in all of its manifestations except what was unavoidable for procreation. In 1873, in an atmosphere of collective hysteria, he easily lobbied through Congress a draconian postal law with far-reaching prohibitions. Banned from publication and the mails were not only “dirty” books and pictures but also information about sex education, abortion, contraceptives, and sexually transmitted diseases. Individual states followed suit with strict laws of their own.
Comstock crusaded against women’s suffrage, sex education, and preached that “free love and lust” were destroying the morals of the country. He also attacked the arts (all figures must be clothed, and all statues provided with fig leaves). As head of the New York Society for the Suppression of Vice, he was made a special agent of the Post Office, and wielded vast power. In the first six months of his national operation, he claimed that he seized 194,000 obscene pictures and photographs, 134,000 pounds of books, 14,200 stereopticon plates, 60,300 rubber articles, 5,500 sets of playing cards and 31,500 boxes of “aphrodisiacs.”
Comstock died in 1915. His successor as head of the Society for the Suppression of Vice was John S. Sumner, less flamboyant than Comstock, but who nonetheless believed himself the embodiment of true Americanism, with a mission to uphold sexual propriety, patriotism, and Christian piety. The Society continued to have the statutory power to uncover violations of the Comstock Laws. And so it went, American
