Obscenity Trials and American Literature
Authors: Carroll Jordan 
Published: February 2021

While obscenity is notoriously difficult to define and the test for determining obscenity has shifted over time, typically the term has referred to the crime of publishing prohibited, sexually explicit material. Obscenity has always been a criminal offense in the United States. Citing English common law, judges in the early republic and antebellum periods maintained that obscenity threatened to degrade the nation’s character. Nevertheless, obscenity law was not strongly or consistently enforced throughout the United States until the Comstock Act in 1873. Anthony Comstock, founder of the New York Society for the Suppression of Vice, targeted Walt Whitman’s Leaves of Grass along with publications by advocates for feminism, free love, and birth control. American courts adopted the test put forth by Lord Chief Justice Sir Alexander Cockburn in Regina v. Hicklin (1868), which held that obscenity was defined by “the 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.” Obscenity became a battleground not only for debates about gender and sexual politics but also about the nature of the public sphere. During the 20th century, American literary presses and magazines became increasingly willing to challenge bans on sexually explicit speech, publishing controversial works including The Well of Loneliness by Radclyffe Hall and Ulysses by James Joyce. Modernist authors transgressed the legal bounds of propriety to explore the unconscious, fight for erotic pleasure free from heteronormative restraints, or claim aesthetic autonomy from moral and legal restrictions. United States v. One Book Called “Ulysses” (1933) struck a blow against the Hicklin test. Affirming Judge John M. Woolsey’s not guilty verdict, Judge Augustus Hand proposed a new test for obscenity that anticipated many of the themes that would emerge when the Supreme Court took up this question with Roth v. United States (1957), which defined obscenity as “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient [i.e., sexual] interest.” The Court liberalized obscenity law even as it maintained restrictions on pornographic literature, setting off a wave of censorship cases including trials on Howl and Other Poems by Allen Ginsberg, Lady Chatterley’s Lover by D. H. Lawrence, Tropic of Cancer by Henry Miller, and Naked Lunch by William S. Burroughs. After Roth, lawyers defending borderline obscene publishers pushed for courts to hold that a work could not be obscene if it possessed any redeeming literary or social value. Free speech libertarians succeeded with Memoirs v. Massachusetts (1966) and Redrup v. New York (1967). Although Miller v. California (1973) clawed back this ruling by stipulating that a work must possess “serious literary, artistic, political, or scientific value” to be cleared of obscenity, in the 21st century obscenity convictions for publishing textual media have been limited to a handful of cases concerning pornographic depictions of child sexual abuse. Obscenity remains on the books but largely unenforced for literature.