Thread: -The Docket-

Extent of First Amendment Protections for Adult Themed Literature One of the interesting lessons I learned in my time at law school, was that there are certain types of materials for which the First Amendment's protections do not extend to. Included in this list are such benign matters as yelling fire in a crowded theater. However, one of the more interesting, and perhaps least understood aspects of the limitations on the First Amendment include what is termed as obscenity. Like most legal terms, the term obscenity is considered a term of art...meaning that the definition used in the legal context is significantly different than the colloquial every-day definition of the word. Here, obscenity is defined as follows The character or quality of being obscene an act, utterance, or item tending to corrupt the public morals by its indecency or lewdness. See The Free Dictionary by Farlex, Legal Dictionary accessed 292014 at 747 pm. In other words, obscenity is a legal term applying to anything offensive to morals and is very often times equated to the term pornography. It should be noted, however, that pornography is a much more limited term, referring to the erotic content of books, magazines, films, and recordings. Consequently, the overarching term obscenity includes pornography, but might also include things such as nude dancing sexually oriented commercial telephone messages as well as scatological comedy routines. Needless to say, United States courts experience a great deal of difficulty in determining what constitutes obscenity. Even more troubling is the fact that such determination carries significant implications, because if an act or item is determined as being obscene, then it does not carry the protections afforded by the First Amendment. In a historical context, it was not until the mid-nineteenth century that sexually explicit material became subject to statutory prohibition. Yet, with the changing legal atmosphere, as started with the Comstock Law of 1873which criminalized the transmission and receipt of obscene, lewd, or lascivious publications through the United States mail...that courts began to examine the issue. Of course, having their roots in English common law, many U.S. Courts turned to the English case of Regina v. Hicklin , 3 L.R.-Q.B. 360 1868, for any sort of legal definition regarding obscenity. Like most common law cases, the Hicklin case established a legal test by which to determine whether a legal question fit a specific legal category. In this case, Hicklin held that the proper legal test was 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. In other words, the established test permitted judges to look at objectionable words or passages without regard for the work, as a whole, and without respect to ANY artistic, literary, or scientific value of the work. Of course, such narrow-minded application of a common law test was bound to lead to some abuse. In 1930, courts of the State of Massachusetts declared both Theodore Dreiser's novel An American Tragedy and D.H. Lawrence's novel Lady Chatterly's Lover as obscene. Yet, as time progressed, an important break from the Hicklin standard came in a lawsuit over the United States publication of James Joyce's novel Ulysses . Indeed, both at the trial and appellate levels, the federal courts held that the book was not obscene. See United States v. One Book Called Ulysses , 5 F. Supp. 182 S.D.N.Y. 1933, aff'd 72 F.2d 705 2d Cir. 1934. Those 1930's cases proved pivotal, because they rejected the well-established standard as set in Hicklin and required the courts to examine the artistic, scientific, or other values added to society by the entire work. Nevertheless, in 1957, The United States Supreme Court developed a new test in the landmark case of Roth v. United States , 354 U.S. 476 1957 Justice William Brennan Jr. stated that the term obscenity must be utterly without redeeming social importance, and therefore was not protected by the First Amendment. Moreover, he announced, as a new test, whether the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appears to a prurient meaning lewd or lustful interest. In addition, this new test was applicable to every level of government in the United States. As one might imagine, the Roth test was difficult to utilize, because every term in it eluded a conclusive definition. So, again, The Supreme Court justices found themselves unable to fully agree as to what exactly constituted a prurient interest or what redeeming social importance meant. In Jacobellis v. Ohio , 378 U.S. 184, 84 1964, Justice Potter Stewart expressed such difficulty at defining obscenity, when he remarked I know it when I see it. Of course, this presented difficulties of its own. In 1966, the Supreme Court added requirements to the definition of obscenity. The case involved a bawdy English novel Fanny Hill . Indeed, the court in Memoir v. Massachusetts , 383 U.S. 413 1966, the Court concluded that to establish obscenity, the material must, aside from appealing to the prurient interest, be utterly without redeeming social value, and patently offensive because it affronts contemporary community standards relating to the description of sexual matters. The requirement that the material be utterly without value made prosecution difficult. This was due, in part, to the fact that defendants presented expert witnesses, such as well-known authors, critics, or scholars, who testified about the literary and artistic value of sexually charged books and films. Needless to say, it provides authors and producers of adult-themed material with a severe legal headache, when dealing with such matters, as the legal status of obscenity remained such an intangible, and over-broadly interpretation of what made something obscene. Fortunately, in recent years, state appellate courts have struck down numerous laws which made it criminally obscene for a parent to photograph his or her own child playing in a bathtub, or running nude on a beach. Moreover, A Michigan appellate court reversed the conviction of a Michigan man who was convicted in 1999, for violating an 1897 state law which prohibited the use of obscenities and profanities while in public. The man had been cited for loudly swearing while in a canoe on a public stream. The court ruled that the nineteenth-century statute, unquestionably operated to inhibit the exercise of First Amendment Rights. See Michigan v. Boomer , 655 N.W. 2D 255 Mich.App.2002. What one can determine from all of this, is that the standards for obscenity are changing, and that courts are beginning to shy away from deciding such issues with respect to the determination of obscenity. We can all breathe a little easier knowing this, but, nevertheless, more work needs to be done to provide a more overarching protection for adult-themed literature.