History of Legal Definitions of Literature
Since the beginning of the law’s interest in literature, court cases that have established the legal definition of obscenity have involved written works about which the definition of “literature” has been strenuously debated. The first case in an English-speaking country in which obscenity law was used to restrain the publication of a written work that many critics defined as serious and significant literature occurred in 1868, when a court in England convicted a respected publisher for the publication of a translation of French naturalist Émile Zola’s novel Germinal (1885). The case made clear the danger of the so-called Hicklin test (based on the Obscene Publications Act of 1857 and set out by Chief Justice Cockburn), which allowed law enforcement agencies to prevent the publication of a book if its tendency was “to deprave and corrupt those whose minds are open to such immoral influences” regardless of whether the work in question had any literary or artistic merit. The problem this test created for writers and publishers was that it had the tendency to reduce the subject matter of permissible literature to a child’s level.
Forbidding the publication of any written work that might conceivably influence a child badly was the law of the land in Great Britain and the United States until it was challenged in 1933 by another novel that many critics had praised as a work of serious literature—James Joyce’s Ulysses (1922). In this case, Judge John M. Woolsey dismissed the Hicklin criterion that an obscene work might arouse lust in a child and made a judgment instead on the work’s effect on the “average person.” By determining that Ulysses did not arouse him or two of his friends sexually, Woolsey determined that it could not be banned. Although Woolsey’s decision permitted the publication of Joyce’s great novel in the United States and thus liberated literature from its being restricted to the level of children, it still allowed the courts to prohibit the publication of a work, even though it might be serious literature, if its effect was to arouse someone sexually. An appeal decision that upheld Woolsey’s new test of the average person’s response did significantly add that a written work could only be defined as obscene if “taken as a whole” its “dominant effect” was to arouse the reader sexually; it could not be banned based on objectionable isolated scenes. Judges ruled that they had read Ulysses and determined that the objectionable parts were relevant to the theme of the work—an important new judgment based on criteria applied to the work rather than to its possible effect on the reader.
The first banned work defined by many critics as literature to be challenged in the United States after the Roth decision of 1957—in which the courts ruled that...
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