Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 1167

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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 whereas literature was protected by the First Amendment, obscenity was not—was D. H. Lawrence’s Lady Chatterley’s Lover (1928), which the New York Postmaster tried to prohibit Grove Press from distributing through the U.S. mail. The questions posed to literary critics Malcolm Cowley and Alfred Kazin in Grove Press v. Christenberry focused on whether Lawrence’s novel contained serious ideas and whether the description of sexual encounters in the book were relevant to the expressions of those ideas. Based on Judge Woolsey’s decision in favor of Ulysses, the court ruled that Lady Chatterley’s Lover was an honest, serious book with literary merit and charged that the Postmaster General was doing precisely what the courts in the Ulysses and the Roth cases said should not be done: Lifting from the novel individual passages that he found in isolation to be obscene, while disregarding the basic theme and effect of the book. Thus firmly establishing the dominant effect criterion in addition to the average reader and the redeeming social value criteria already grounded as law, the courts were carefully trying to distinguish the word “literature” from the word “obscenity.”

The distinction was further clarified by the courts in the case involving Grove Press’s publication and distribution of Henry Miller’s Tropic of Cancer (1934) in 1964. The respected scholar Richard Ellmann testified in the Chicago Tropic of Cancer case as an expert witness for the defense, claiming that Miller’s controversial novel was “definitely a work of literary merit and importance.” It was a Florida case, however, that was heard by the Supreme Court in 1964. Justice William J. Brennan, Jr., reiterated the decision in the Roth case that obscenity is excluded from constitutional protection but reemphasized that the portrayal of sex in art and literature was not sufficient reason to restrict it, regardless of whether it might arouse one sexually or whether it was offensive to someone, so long as the work in question was serious literature with social value.

The Court’s careful effort to distinguish between literature and pornography was challenged by a novel that had always been classified as pornography, John Cleland’s The Memoirs of Fanny Hill, a book that had been suppressed since its original publication in 1749. Literary experts in court cases in England in 1964 and America in 1966 testified that while Fanny Hill was not a major work of literature, such as Joyce’s Ulysses or Lawrence’s Lady Chatterley’s Lover, it did have literary merit and was an important contribution to social history. In the English trial, literary critic Ian Watt said: “It has its place in the history of literature and not in the history of smut.”

In America, the defense in a Fanny Hill case attempted to make the argument that if a work is well written it cannot be pornography, for it has literary value and thus has constitutional protection. Although the attorney for the prosecution argued that Fanny Hill was nothing but a series of sexual scenes and therefore had no value except as pornography, Charles Rembar, attorney for the defense, bolstered by the opinion of a number of literary critics, argued that the book had “elements of literary value” such as “good writing, observation of human nature, the drawing of character, psychological insight,” and that it involved real people rather than mere fantasy projections. The Court’s ruling that Fanny Hill was not obscene had the effect of removing the previous rigid distinction between pornography and literature. It now seemed that pornography could be literature rather than obscenity if it were well written and thus had some literary merit.

As a result of these important cases, the courts gradually abandoned efforts to try to define the obscene as that which had no literary worth, thus freeing themselves from the responsibility of being the national arbiters of what was good literature. The next series of legal cases that attempted to define and thus prohibit the publication of written works as obscene was not based on making a distinction between literature and pornography but rather on defining the subject matter of pornography as being one that posed a danger to a certain segment of the public—mainly women.