2.3 Obscenity Law-the Modern History

Part: 
Two
Chapter: 
2

As indicated in the previous section, there were traces of legal concern with decency itself in the eighteenth century, but these were little more than traces. If one is searching for the roots of modern American obscenity law, one must look to the first half of the nineteenth century in both Great Britain and the United States. The impetus in Britain came initially from private organizations such as the Organization for the Reformation of Manners and its successor the Society for the Suppression of Vice. As printing became increasingly economical, printed materials became more and more available to the masses. Thus, the kinds of sexually explicit material that had circulated relatively freely in England among the elite during the eighteenth century and earlier now became more readily available to everyone. With this increased audience came an increase in demand, and with the increased demand came an increased supply. As a result, the early part of the nineteenth century saw much greater production and circulation of material as sexually explicit as had been less widely circulated earlier. And because the audience was more broad-based, the material itself became not necessarily more explicit, but certainly briefer, simpler, and more straightforward.

These developments in England came at about the same time as general views about sexual morality, and especially about public sexual morality, were becoming increasingly stern. In an important sense, Victorianism preceded Victoria, and thus the initiatives of organizations like the Society for the Suppression of Vice found a receptive audience in the population at large, in government, and in the judiciary. Because private prosecution for criminal offenses was part of the English system of criminal justice at the time, the Society and others like it were able to commence their own criminal prosecutions, and their efforts from the early 1800s through the 1860s resulted in many prosecutions for obscene libel, as it had by then come to be called. Most of these prosecutions were successful, and by the 1860s there had developed a well established practice of prosecuting people for distributing works perceived as immoral.

The 1800s also saw the development of more effective ways of printing drawings in one form or another for mass circulation, and saw as well the development of photography. Not surprisingly, printed materials with a sexual orientation came to include increasingly large amounts of pictorial material. This development not only increased the impact of the materials, and therefore the offensiveness of many of the materials, but also increased their accessibility. With literacy no longer a requirement for appreciation, the market demand increased, and so, consequently, did the supply. Legal reactions to the proliferation of pictorial materials, again largely inspired by the Society for the Suppression of Vice and similar organizations, included the Vagrancy Act of 1824, which provided criminal penalties for the publication of an indecent picture, as well as legislation enacted in 1853 directed primarily at the increasing importation into England of socalled "French postcards."

American developments were similar. Although prior to 1800 there existed colonial statutes and some common law cases seemingly inclusive of profanity or sexual immorality, again the plain intent of these laws, as well as their universal application, was only to that which was blasphemous or in some other way threatening to religion. Pure sexual explicitness, while often condemned, was not until after 1800 taken to be a matter of governmental concern. After 1800, however, trends with respect to the type of material available and the audience to whom it was directed were quite similar to the trends in England. The reaction was also similar, and in Pennsylvania in 1815 the case of Commonwealth v. Sharpless[11] represented the first reported conviction in the United States for the common law crime of obscene libel. Massachusetts followed six years later, in the case of Commonwealth v. Holmes,[12] and at about the same time Vermont passed the country's first statute prohibiting the publication or distribution of obscene materials. Other states followed, and by the middle of the nineteenth century the production and distribution of obscene materials was a crime throughout most of the United States.

As in England, however, most of the enforcement impetus in the United States came from private organizations. Most prominent among these were the Watch and Ward Society in Boston and the New York Society for the Suppression of Vice. The New York Society for the Suppression of Vice, officially created in 1873, was largely the product of the efforts of Anthony Comstock, who crusaded actively from about that time until his death in 1915 for greater restrictions on indecent materials, and for more vigorous prosecution of the laws against them. Although he was also actively opposed to light literature, pool halls, lotteries, gambling dens, popular magazines, weekly newspapers, contraception, and abortion, most of his energies were directed at sexually explicit magazines, books, and pictures. In large part his most vigorous efforts were directed at magazines like The National Police Gazette, and other generally nonartistic works. Although Comstock admitted that artistic or literary merit did not concern him if the material dealt with "lust," most prosecutions of the time were for comparatively unimportant works, a phenomenon that was to change in the early part of the twentieth century. Comstock was largely responsible for the enactment of the federal laws that still, with only comparatively minor modifications through the years, constitute the bulk of the federal laws dealing with obscene materials. And he himself, as a specially appointed agent of the Post Office Department, enthusiastically and vigorously enforced the law. Shortly before his death, he announced with pride that he had "convicted persons enough to fill a passenger train of sixty-one coaches, sixty coaches containing sixty passengers each and the sixty-first almost full. I have destroyed 160 tons of obscene literature."

Although Comstock's efforts were the most vigorous, the most extensive, and the most effective, similar initiatives took place throughout the United States during the latter part of the nineteenth century and the early part of the twentieth. The result of this had a profound effect on the nature of the industry, for throughout the first half of the twentieth century in the United States the market for sexually explicit materials was almost exclusively clandestine. During this period prosecutions and legal developments surrounded the attempted and often successful actions against works now (and even then) commonly taken to be of plain literary or artistic merit. The law concerned itself not only with comparatively explicit works such as D.H. Lawrence's Lady Chatterley's Lover and James Joyce's Ulysses, but works containing suggestions of sexual immorality no more explicit than that in, for example, Theodore Dreiser's An American Tragedy. The Supreme Judicial Court of Massachusetts found this book to be obscene because "the seller of a book which contains passages offensive to the statute has no right to assume that children to whom the book might come would not read the obscene passages, or having read them, would continue to read on until the evil effects of the obscene passages were weakened or dissipated with the tragic denouement of the tale."[13]

With publications such as An American Tragedy and Esquire magazine[14] constituting the legal skirmishes, it was plain that truly sexually explicit material could not circulate openly, and in fact it did not for much of this century. It still existed, however, despite having been driven rather deeply underground. We discuss the more recent history of the production, distribution, and sale of truly explicit material at greater length later in this Report dealing with the nature of the industry in general, but it is important to note here that the existence of legal disputes about mainstream literary works did not mean that these works constituted the extent of what was available. So-called "stag films" were produced and distributed in a highly surreptitious fashion. Sales of pornographic pictures magazines, and eight millimeter films took place through the mails as a result of advertisements in heavily guarded language, or through sales by someone who knew someone who knew someone else, or in some form or another "under the counter" in establishments primarily devoted to more accepted material. Until the 1960s, therefore, the law operated largely in two quite different roles. On the one hand, and more visible, were the prosecutions of books and films that contained substantial merit and were directed to and available to a general audience. But on the other hand were enforcement efforts against much more explicit material, distributed in much more surreptitious fashion, as to which serious constitutional or definitional issues never arose. It was not until the early 1960s, when the Supreme Court began actively to scrutinize the contents of material found to be obscene, that attempted prosecutions of unquestionably serious works largely withered, and that most of the legal battles concerned the kinds of material more commonly taken to be pornographic.

This active Supreme Court scrutiny had its roots in the 1957 case of Roth v. United States,[15] discussed at length in Chapter 30 of this Part, in which the First Amendment was first taken to limit the particular works that could be found obscene. By the 1960s, cases such as Jacobellis v. Ohio[16] had made this close scrutiny a reality, and by 1966 the range of permissible regulation could properly be described as "minimal." In that year the Supreme Court decided the case of Memoirs v. Massachusetts,[17] which held that material could be restricted only if, among other factors, it was "utterly without redeeming social value." The stringency of this standard made legal restriction extraordinarily difficult, and shortly thereafter the Supreme Court made it even more difficult by embarking on a practice of reversing obscenity convictions with respect to a wide range of materials, many of which were quite explicit.[18] The result, therefore, was that by the late 1960s obscenity regulation became essentially dormant, with a consequent proliferation of the open availability of quite explicit materials. This trend was reinforced by the issuance in 1970 of the Report of the President's Commission on Obscenity and Pornography, which recommended against any state or federal restrictions on the material available to consenting adults. Although the Report was resoundingly rejected by President Nixon and by Congress, it nevertheless reinforced the tendency to withdraw legal restrictions in practice, which in turn was one of the factors contributing to a significant growth from the late 1960s onward of the volume and explicitness of materials that were widely available.

The Supreme Court decisions of 1973, most notably Paris Adult Theatres I v. Slaton[19] and Miller v. California,[20] by reversing the "utterly without redeeming social value" standard and by making clear once again that the First Amendment did not protect anything and everything that might be sold to or viewed by a consenting adult, tended to recreate the environment in which obscenity regulation was a practical possibility. Since 1973, however, the extent of obscenity regulation has varied widely throughout the country. In some geographic areas aggressive prosecution has ended the open availability of most extremely explicit materials, but more commonly prosecution remains minimal, and highly explicit materials are widely available. Because the current situation is explored throughout this Report, and because it is described in detail in a later part, we will go no further in this Chapter, whose primary purpose has been to put the present into historical perspective.

Notes

  1. 2 Serg. & Rawle 91 (1815).
  2. 17 Mass. 336 (1821).
  3. Commonwealth v. Friede, 271 Mass. 318, 171 N.E. 472 (1930).
  4. Hannegan v. Esquire, ;127 U.S. 146 (1946)
  5. 354 (1.S. 476 (1957)
  6. 378 U.S. 184 (1964).
  7. 383 U.S. 413 (1966).
  8. E.g., Redrup v. New York, 386 U.S. 767 (1967).
  9. 413 U.S. 49 (1973).
  10. 413 U.S. 15 (1973).