An Overview to Obscenity and the 1st Amendment

1
An Overview to Obscenity and the 1st Amendment

• Lets get terms straight--pornography, erotica,
  and obscenity
• A Brief History of Suppression Efforts
• Ties to blasphemy
• First federal law--1842, Civil War
• Comstocks Crusade
• Rosen v. US (1896)--adopts the Hicklin rule
• 1920s--growing attacks on literature--Balzac,
  Voltaire, Joyce and Rousseau

2
The Hicklin case--1867

• British anti-Catholic publication called The
  Confessional Unmasked Shewing the Depravity of
  the Roman Priesthood, the Iniquity of the
  Confessional, and the Questions put to Females in
  Confession
• The Hicklin Rule--whether the tendency of the
  matter charged as obscenity is to deprave and
  corrupt those whose minds are open to such
  immoral influences, and into whose hands a
  publication of this sort may fall.
• 1896--Rosen v. US upholds the Comstock Act and
  applies Hicklin Rule in the US

3
Early Court Cases on Obscenity

• 1933 case on Ulysses--James Joyce
• the test--1) judge the work in its entirety, 2)
  a person of average sexual instinct, 3) stirs
  the sex impulses Learned Hand
• 1942 Chaplinsky v. New Hampshire--two tiers of
  speech 1) speech with social value as a step to
  truth, and 2) that which has no social
  value--fighting words, the lewd, the profane, the
  obscene, and the libelous

4
The Court v. The Regulators

• Burstyn v. Wilson (1952)--attempt to suppress
  Rossellinis The Miracle, 9-0 reversal, no
  constitutional basis for suppression of
  blasphemy, overturns 1915 case saying films have
  no 1st amendment protections
• Kingsley International Pictures v. Regents
  (1959)--cant suppress ideas like adultery may be
  OK

5
Roth v. US (1957) 6-3 affirm the conviction of
Roth

• 2 part definition of obscenity--it is a form of
  expression that is utterly without redeeming
  social importance and is sexually lewd meaning
  whether the average person, applying
  contemporary community standards finds that the
  dominant theme of the material, taken as a whole,
  appeals to the prurient interest.
• explicit rejection of Hicklin rule