Law and Obscenity

Most nineteenth century American jurisprudence concerning what might legitimately appear in public was decided according to an English case, Regina v. Hicklin (1868), which ruled that a determination of obscenity depended upon whether “the tendency of the matter charged as obscenity is to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands a publication of the sort may fall.”[i] While the Hicklin Test admitted a “strict interpretation” under which it concerned only the “sexual morality” of individuals, Gurstein observes that for many decades judges assumed that it also had bearing on broader questions of decency.[ii] Perhaps the simplest rationale for this broader interpretation is the recognition that life cannot be so easily compartmentalized as the reformers often liked to believe. As David Tubbs put it in Freedom’s Orphans: “Most reflective persons would admit that the welfare of children depends greatly on the social conditions and intellectual currents within it.”[iii] A society full of fathers who regularly look at pornography, for instance, is by no means a desirable environment for safeguarding the well-being of its young children, though they might never lay eyes on the obscene material. Thus, children themselves have an important claim to the moral integrity of their parents, and so to (perhaps indirect, though necessary) measures to secure that character.

As early as 1884, however, court decisions were questioning Hicklin. For instance, People v. Muller “proposed a test of the ‘motive’ of a painting or statue to determine ‘whether it is naturally calculated to excite in a spectator impure imaginations,’ ” simply neglecting “the idea of indecency” by omission.[iv] In 1913, Judge Learned Hand propounded a striking criticism of Hicklin in United States v. Kennerley: “he questioned whether ‘our society is prepared to accept for its own limitations those which may perhaps be necessary to the weakest of its members.”[v] Both of these decisions represent the progress of what Gurstein names “the subjectivization [sic] of obscenity.”[vi] It became increasingly difficult to articulate a conception of social life as demanding shared notions of decency, propriety, discretion, tact, as what Tubbs has termed “moral reticence” overtook the legal discourse.[vii]

In New York v. Winters (1943), the Supreme Court first afforded First Amendment protection to mass culture, in the form of a series of sensational and luridly violent detective comics. Justice Reed wrote, “What is one man’s amusement is another’s doctrine.”[viii] From Winters onward, “The legal discourse could speak about aesthetic considerations apart from morals ones,” and so “would have less and less to say about how the world should look.”[ix] Thomas Nagel voiced an extreme version of this “moral reticence”: “I don’t want to see films depicting torture and mutilation, but I take it as obvious that they do something completely different for those who are sexually gratified by them.”[x] In 1957, the Supreme Court finally addressed the constitutionality of obscenity head-on in Roth v. United States. Though Justice Brennan first insisted, “Obscenity is not within the area of constitutionally protected freedom of speech or press,”[xi] he quickly qualified that statement nearly out of existence: “All ideas having even the slightest redeeming social importance…have the full protection of the guaranties.”[xii] He repudiated the Hicklin Test, offering instead a tentative model whose touchstone was an “appeal to prurient interest.”[xiii] Finally, in Miller v. California (1973), the Court offered a new test for obscenity, which maintained Roth’s “prurient interest,” though qualified by “contemporary community standards,” and qualified still further by the work’s needing to lack “serious literary, artistic, political, or scientific value.”[xiv]

After Miller, the Supreme Court, freed from considering society’s “most susceptible” members, used the new test to elevate individual rights to free speech over the interests of children, as in United States v. Playboy Entertainment Group, Inc. (1996). In this case, the Court ruled that Playboy did not have to take measures to “scramble” their pornographic television programming in order to prevent the signal from “bleeding” into other channels, where they might be seen by children, instead allowing the corporation simply to advise viewers of the possibility of individual “blocking.”[xv] This development was in one sense just the legal recognition of a widespread cultural indifference to the unique needs of children, as evinced by the vulgar speech and knowing sexual innuendoes of perhaps most twelve year-olds today. In fact, nearly contemporaneously with Playboy, England witnessed two horrifying murders perpetrated by children against another child and a middle-aged man, each partially in imitation of popular horror films.[xvi] Setting aside the theoretical character of Gurstein’s argument, there can certainly be no doubt that “the repeal of reticence” in Western culture has coincided with the coarsening of public discourse, and a concomitant rise in indifference toward the particular needs of children.

Nonetheless, the problem of Anthony Comstock must remind Gurstein’s readers that, however appealing many aspects of her account may doubtless be, a return to Victorian reticence would be strong medicine for even sophisticated and “conservative” moderns, well-accustomed to the coarseness of Ulysses and the violence of Schindler’s List, to the scandalous plot devices of Chicago and the comically vulgar essays of David Sedaris. In fact, many devotees of the modern novel and of modern art would insist that some of these things have enriched us considerably. Further, as Marjorie Heins argued in her introduction to Not in Front of the Children, “social science has not proved any identifiable subject or medium to cause significant, predictable changes in children’s attitudes or behavior”: violent movies, she insists, do not directly produce violent children.[xvii] Given the necessary conflicts of interest involved in censorship, Heins suggests “training in media literacy, critical thinking skills, and comprehensive sex education” to prepare children to grapple with mature instantiations of modern life.[xviii] Censorship, she argues, too often unnecessarily restricts freedom of speech, and “frustrates young people’s developing sense of autonomy and self-respect.”[xix]         

Thus, there still remains the challenge of articulating a return to reticence acceptable to most conservatives. Few adults today feel culpable for having read Hedda Gabler, and still fewer could identify any real moral bond that Ibsen might share with Hugh Hefner. However, Gurstein’s insight into the real human and cultural goods fostered by a robust distinction between things public and private is indispensable. If there is to be any meaningful discourse between individuals, any possibility of distinguishing the beautiful from the ugly, or children from adults, then a return to Gurstein’s reticent sensibility, however faint-hearted it might be, is of paramount importance.


[i] qtd. in Rochelle Gurstein, The Repeal of Reticence, 74

[ii] Gurstein 191

[iii] Tubbs, David. Freedom’s Orphans. Princeton Universtiy Press: Princeton, 2007. (18)

[iv] Gurstein 185

[v] Ibid. 186

[vi] Ibid. 188

[vii] Tubbs 4

[viii] qtd. in Gurstein 239

[ix] Gurstein 201

[x] qtd. in Tubbs 39

[xi] qtd. in Gurstein 250

[xii] Ibid.

[xiii] Ibid.

[xiv] Tubbs 143

[xv] Tubbs 168-172

[xvi] Tubbs 2-3

[xvii] Heins, Marjorie. Not in Front of the Children. Hill and Wang: New York, 2001. (11)

[xviii] Ibid.

[xix] Ibid. 13

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