Books and Obscenity Law Analysis

At Issue

(Critical Guide to Censorship and Literature)

Through most of the world’s history, there was little concern for censorship of obscene materials. Instead, the focus of censors was on political and religious ideas. Rigorous campaigns, with or without the benefit of law, were launched against people labeled heretics or revolutionaries. Obscene material was sometimes attacked as so immoral as to be heretical; the Marquis de Sade’s writings describe themselves as such. It was not until the nineteenth century that great attention was directed toward obscene materials.

Obscenity Law Abroad

(Critical Guide to Censorship and Literature)

Great Britain enacted obscenity laws in 1857, 1959, and 1964 with each one seeking to tighten loopholes that existed in preceding laws, but in Great Britain and in other countries, a central problem rested in trying to establish any solid definition of what constitutes obscenity. Before the 1960’s, Denmark had obscenity laws in place. The laws were difficult to interpret or enforce, and in 1964 the country became characterized for its lack of obscenity law. Since that time, the obscenity law has centered on the illegality of selling pornographic pictures to minors or distributing such materials in public.

France and Germany have taken the position of allowing adults to read what they please, but publishers are prohibited from producing and selling books going beyond the generally accepted standards of society. Protection of minors from pornographic materials remains a provision of law in these countries and in most of the world.

United States Obscenity Law

(Critical Guide to Censorship and Literature)

Early censorship laws in the United States focused primarily on sexually explicit materials, and legislation in that area was left to the individual states until the middle of the nineteenth century. Massachusetts tried to prohibit the distribution of The Memoirs of Fanny Hill (1748) by John Cleland in 1821. The result was that the book was declared obscene.

In 1842 Congress passed legislation banning the importation of obscene materials into the United States, and during the Civil War, Congress acted further by prohibiting the sending of obscene materials through the mails. Soldiers during the Civil War kept images of naked women made with the then-new photographic technology.

A campaign for strict obscenity laws was launched by Anthony Comstock, resulting in the passage of the federal Comstock Act of 1873, which prohibited the importation or mailing of obscene or lewd material. The U.S. Supreme Court eventually changed the grounds on which a book could be declared obscene, and in 1933 a federal court decision allowing James Joyce’s Ulysses (1922) to be imported into the United States loosened the hold of censorship laws.

Obscenity law in the United States was molded through the 1957 Supreme Court case Roth v. United States, which established a three-part test for obscenity: The material as a whole must appeal to a prurient interest, it must be offensive on the basis of contemporary community standards, and it must be utterly without redeeming social value. In the 1973 case of Miller v. California it was decided that determination of obscenity would rest with these guidelines: whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to a prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Also, it was ruled that local rather than national community standards would apply. The Miller test is applied in determining whether a particular book is obscene and therefore not protected by the First Amendment. In applying the Miller Test, the courts may reach differing decisions on the same book, depending on the geographical location involved in a case.

Major Court Cases

(Critical Guide to Censorship and Literature)

Court cases in the United States illustrate how unevenly obscenity trials have been decided. In United States v. Kennerley (1913), Michael Kennerley was convicted of sending obscene materials through the mail. The material in question was a book that censors had labeled obscene. Another obscenity case in 1953, New American Library of World Literature, Inc. v. Allen, was decided against the censor, a police chief in Youngstown, Ohio. The police chief attempted to ban the sale of 108 books he considered obscene, and the New American Library of World Literature, one of the publishers involved, brought suit. Allen said he based his objections to the material on the cover illustrations of the books, tying those objections to a city ordinance. A federal judge ruled that the chief of police had no legislated authority to ban books.

A reversal in judicial rulings occurred in the case of Sunshine Book Company v. Summerfield (1957). A nudist magazine, Sunshine and Health, was ruled obscene because the publishers were promoting lust, in the opinion of lower courts. In 1958 the decision was reversed by the U.S. Supreme Court when the Roth standard was applied.

Local ordinances in Los Angeles, California, were applied in the conviction of Eleazer Smith, a bookstore owner, in Smith v. California (1959). The book in question would have been judged obscene under the Roth standard, but the U.S. Supreme Court found...

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(Critical Guide to Censorship and Literature)

Haig Bosmajian’s Censorship, Libraries, and the Law (New York: Neal-Schuman, 1983) has detailed information on a large number of censorship cases. Joseph E. Bryson and Elizabeth W. Detty’s The Legal Aspects of Censorship of Public School Library and Instructional Materials (Charlottesville, Va.: Michie Company, 1982) addresses the literature of censorship and the law, academic freedom, religious freedom, parents’ rights, legal definitions of obscenity, and court decisions. Donna A. Demac’s Liberty Denied: The Current Rise of Censorship in America (New Brunswick, N.J.: Rutgers University Press, 1990) covers a wide variety of topics related to censorship and the law, including bureaucratic restrictions, government control of the press, and the foundations of free expression. Herbert N. Foerstel’s Banned in the U.S.A.: A Reference Guide to Book Censorship in Schools and Public Libraries (Westport, Conn.: Greenwood Press, 1994) surveys major book banning incidents, the law on book banning, and the most frequently banned books of the 1990’s.