Buckley, W. K., Lady Chatterley's Lover: Loss and Hope. Pp. xiv + 121 (Twayne's Masterwork Studies). New York: Twayne; Toronto: Maxwell Macmillan Canada; New York, Oxford, Singapore, Sydney: Maxwell Macmillan International, 1993. $22.95

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.

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Constitutional Law in 1958–1959: II

American Political Science Review ◽

10.2307/1978309 ◽

1960 ◽

Vol 54 (2) ◽

pp. 474-493

Author(s):

David Fellman

Keyword(s):

New York ◽

Motion Picture ◽

Motion Pictures ◽

The State ◽

Court Of Appeals ◽

Single Tax ◽

State Construction ◽

Lady Chatterley's Lover ◽

Sexual Immorality ◽

Proper Behavior

Censorship of Motion Pictures. A recent amendment to the New York statute dealing with the licensing of motion pictures defines as “immoral” a picture “the dominant purpose or effect of which is erotic or pornographic; or which portrays acts of sexual immorality, perversity, or lewdness, or which expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior.” The Education Department denied a license to the distributor of “Lady Chatterley's Lover” on the finding that three scenes were “immoral.” On appeal, the Regents of the University of New York upheld the denial of the license on the broader ground that “the whole theme of this motion picture is immoral under said law, for that theme is the presentation of adultery as a desirable, acceptable and proper pattern of behavior.” In affirming the denial, the Court of Appeals unanimously and explicitly rejected any notion that the film was obscene, but found rather that the picture as a whole “alluringly portrays adultery as proper behavior,” and that the only part of the statute applicable here was that which bars films which portray “acts of sexual immorality … as desirable.” Though there was no agreement on a single opinion, the Justices were unanimous in reversing the Court of Appeals. In behalf of a bare majority, Justice Stewart argued that since the state construction took the case outside the scope of such concepts as “obscenity” or “pornography,” and did not even suggest that the film would incite to illegal action, the state has in effect prohibited the exhibition of a motion picture because it advocates an idea, that under certain circumstances adultery may be proper behavior. This runs contrary to the basic guarantee of the First Amendment, which is the “freedom to advocate ideas,” and thus the state has quite simply “struck at the very heart of constitutionally protected liberty.” For the state misconceives what the Constitution protects. “Its guarantee,” wrote Justice Stewart, “is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Free speech, he went on to argue, cannot be denied where advocacy falls short of incitement, and where there is nothing to indicate that the advocacy will be acted on immediately.

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