Legislative Attempts, 1983–1988

The chapter compares Canadian and U.S. legislative challenges. It delineates the 1983–1985 Canadian Fraser Committee’s liberal-conservative compromise, which rejected the women’s movement’s evidence-based demands that called for a civil rights approach like that endorsed by the U.S. Attorney General’s Commission. The minor, incremental change of the Fraser Committee’s recommendations is examined: the similarity to existing obscenity law and the reliance on general human rights legislation, as opposed to adopting specific legal measures that would recognize the intersectional grounds necessary to empower those victimized. Likewise, significant parliamentary attempts in 1986–1988 to reform Canadian obscenity law are assessed, including flaws such as “body-parts” definitional approaches that fail to acknowledge the context of subordination and various potentially overbroad provisions or loopholes. The chapter concludes that by contrast to its U.S. counterpart, the Canadian feminist anti-pornography movement lacked sufficient focus or political influence to impact legislative deliberations in the desired direction.

Judicial Challenges, 1982–2019

The chapter compares Canadian and U.S. judicial challenges, tracing the development of Canada’s unconventional harm-based criminal obscenity law under the 1982 Charter’s substantive equality guarantees. It highlights the Canadian Supreme Court intervener LEAF—a women’s organization instrumental in Butler (1992), where the law was saved as an equality provision against freedom of expression challenges. Butler is contrasted with the more categorical U.S. First Amendment law. Despite Butler’s promises, it is shown that since then, pornographers have mainly been protected by Canadian courts, which use desensitized contemporary standards, flawed empirical evidence, surgically inserted loopholes, and wishy-washy judicial reasoning where harm is concerned. In light of LEAF’s successful intervention, the civil rights model is explored as an alternative to criminal law that would better represent the groups whose interests are most threatened by pornography—groups with substantially stronger incentives than the government to invest time and effort in challenging the pornography industry.

Obscenity Trials and American Literature

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.

9. Freedom of expression

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic, and suggestions on further reading. This chapter moves on from the previous one to examine the freedom of expression. Under common law, freedom of speech is guaranteed unless the speaker breaks the law, but this is now reinforced by the right of free expression under the European Convention on Human Rights. The questions here deal with issues such as obscenity law and contempt of court; the Official Secrets Act; freedom of information; data protection; breach of confidence; and whether there is a right of privacy in English law.

Literary Analysis of Law

This chapter shows what digital resources can reveal about the prehistory of the Miranda warning. The first part of the chapter offers an extensive, database-driven survey that takes novelistic representation as its focus. Conversely, by studying a particular work, and focusing not only on its content but also on how it uses plot and character, we can ask about its animating logic, posing questions about how a text works rather than what it says or shows overtly. The second part takes a more intensive approach, asking how Oscar Wilde’s novel The Picture of Dorian Gray (1890–1891) uses various techniques of representation to explore the logic of obscenity law—a logic that also applies to the legal regulation of language in other contexts, such as libel and sedition.