obscenity

obscenity, legal concept used to characterize certain (particularly sexual) material as offensive to the public sense of decency. A wholly satisfactory definition of obscenity is elusive, however, largely because what is considered obscene is often, like beauty, in the eye of the beholder. Although the term originally referred to things considered repulsive, it has since acquired a more specifically sexual meaning.

Early restrictions

Legal restrictions on the content of literature and works of visual art have existed since ancient times. Traditionally, however, governments were much more concerned with sedition, heresy, and blasphemy, and it was not until relatively modern times that sexuality became a major preoccupation of political and religious authorities. One of the first systematic efforts to regulate literature was undertaken by the Roman Catholic Church, which banned heretical works as early as the 4th century. By the Middle Ages the list of banned works had grown dramatically. In 1542 Pope Paul III established the Sacred Congregation of the Roman Inquisition—the precursor of the modern Congregation for the Doctrine of the Faith—one of whose responsibilities was the suppression of heretical and immoral books. In 1559 Pope Paul IV published the Index Auctorum et Librorum Prohibitorum (see Index Librorum Prohibitorum), a comprehensive list of forbidden books that went through numerous editions before it was abolished in 1966. Immoral works also were suppressed in Protestant countries such as England, where, prior to the 18th century, restrictions were applied almost exclusively to antireligious or seditious acts or publications, rather than to obscene material in the modern sense.

Obscenity laws in the 18th and 19th centuries

Modern obscenity law emerged as a direct response to social and technological changes—particularly the development of the printing press in the 15th century—that permitted the wide and easy distribution of what was then considered sexually explicit material. By the 17th century such books and prints had become widely available throughout Europe; governments and church authorities responded by arresting and prosecuting publishers and distributors. A similar sequence of events occurred in Japan, where the development of colour woodblock printing ended up soon creating a sizable industry in erotic pictures. In 1722 the Japanese government introduced the first of several edicts against unlicensed materials, whether erotic or political.

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In the early 18th century the temporal courts of England failed to pass judgment on defendants charged with obscenity because there was no law against the publication of such material. The offense of obscene libel subsequently developed to enable the prosecution of people of “wicked and depraved mind and disposition” for publishing materials that corrupted the morals of society by creating “lustful desires.” In the 1720s bookseller Edmund Curll became the first person to be convicted on a charge of obscenity in England in the common law (as opposed to the ecclesiastical) courts, for his publication of a new edition of Venus in the Cloister; or, The Nun in Her Smock, a mildly pornographic work that had been written several decades earlier; his sentence, a fine and one hour in the pillory, was delayed because no punishment was then specified in the law. Thereafter obscenity was recognized as an indictable misdemeanour under common law. (Because the charge of obscene libel applied only to publications, obscene acts were prosecuted on the charges of conspiracy to corrupt public morals and conspiracy to outrage public decency.)

Not surprisingly, it was often difficult to draw a sharp distinction between the suppression of published materials for moral reasons and for reasons of political control or repression. Thus, the 18th-century English laws that regulated indecent or suggestive materials were also used to suppress criticism of government ministers and other favoured political figures. In the 1760s the journalist and politician John Wilkes, a leading government critic, was charged with seditious libel for his periodical North Briton and with obscene libel for his poem An Essay on Woman, a parody of Alexander Pope’s An Essay on Man. Prosecutions for obscenity in other European countries also betrayed a merging of moral and political concerns. Perhaps the most celebrated obscenity trial in 19th-century France was that of Gustave Flaubert, who was charged with “outrage to public morals and religion” for his novel Madame Bovary (1857). Although the book was indeed sexually frank by the standards of the day, the prosecution, which was unsuccessful, was motivated primarily by the government’s desire to close down Revue de Paris, the magazine in which the work first appeared.

By the mid-19th century the spread of Victorian notions of morality resulted in harsher legislation against the publication and distribution of sexually explicit material. In Great Britain such material was prohibited on purely sexual grounds for the first time by the Obscene Publications Act of 1857. The legislation, which failed to define obscenity, faced strong opposition but was passed after the lord chief justice guaranteed that it would be used to prosecute individuals for works “written for the single purpose of corrupting the morals of youth and of a nature calculated to shock the common feelings of decency.” A legal definition of obscenity was subsequently established in Britain in Regina v. Hicklin (1868), in which the court held that obscene material is marked by a tendency “to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.” It was understood that this test could be applied to isolated passages of a work, and the ruling made it possible to label a work obscene not on the basis of the intended readership but on how it might influence anyone in society (e.g., women and children). This perspective later formed the basis of antiobscenity laws in legal systems influenced by British law, particularly in countries that were at one time part of the British Empire.

Beginning in the 1820s, state governments in the United States began passing obscenity laws, and in 1842 the federal government enacted legislation that allowed the seizure of obscene pictures. The most comprehensive federal legislation of the era was the Comstock Act (1873)—named for its chief proponent, Anthony Comstock—which provided for the fine and imprisonment of any person mailing or receiving “obscene,” “lewd,” or “lascivious” publications. The act became notorious as the basis for the widespread suppression not merely of pornographic books and pictures but also of publications containing legitimate medical information about contraception and abortion, as well as contraceptive devices themselves.

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