II. Previous and Current Laws Effecting U.S. Pornography

Part: 
Four
Chapter: 
4
Before addressing the current status 'of court rulings involving the issue of pornography, it is necessary to provide a brief background regarding the philosophical and historical evolution of our present law. It should be pointed out that this portion of the report is designed to provide a workable insight for the average law enforcement officer into the historical development of laws governing pornography.

The crime of creating or distributing "obscene" sexual materials is of relatively recent origin in American law. Royal censorship began in England in 1531 through a licensing system under secular authority with ecclesiastics as licensers established by Henry VIII. English censorship at that time Was not directed toward sexual content; but rather, it was directed against seditious and heretical works. There was a brief period between 1605 and 1660 in which the strong influence of Puritanism in England led to authorization of proceedings against the use of profanity by actors on stage. However, after the Restoration in 1660, licensing was again limited to suppressing sedition and heresy in printed works.

The first case which demonstrated that the common law courts would, even in the absence of a statute, penalize conduct which is grossly offensive to the public occurred in 1663 in the case of King v. Sedley. Sir Charles Sedley and two friends became drunk at a tavern. They climbed to the balcony of the tavern and removed their clothes. Sedley gave a speech which included profanities. He also poured bottles of urine on his audience and a riot ensued. Although the case did not concern the distribution of sexual materials, it involved both a physical assault j upon others and the public broadcasting of profanity and nudity upon unwilling recipients. Sedley was given a substantial fine and committed to jail for a week. This case was subsequently deemed an obscenity case when the issues involved were later cited in rulings concerning obscenity.

In 1695, when the Licensing Act expired, Parliament declined to renew it. This apparently was not because Parliament disapproved of the practice of licensing; but rather because it considered the act unenforceable. The end of the licensing System made it likely that some new legal controls over writings would develop, at least for areas such as libel which were suddenly, for the most part, unregulated. Though the licensers had not directed their attention toward obscenity, the existence of a licensing plan probably had some inhibiting effect on pornographic publications. In any case, the demise of the system, coupled with the spread of literacy and the increased popularity of reading, gradually led to a new class of writers. The upper classes became concerned about the possible effects of these writings. It is in this setting that the effort was made to control obscenity through the common law courts.

In 1708, in the case of Queen v. Read, a prosecution was instituted against a book entitled "The Fifteen Plagues of a Maidenhead". Read was acquitted when the court ruled "a crime that shakes religion, as profaneness on the stage, etc., is indictable; but writing an obscene book, as that entitled, ?The Fifteen Plagues of a Maidenhead', is not indictable, but punishable only in the spiritual court". This case asserted that obscenity, if it was an offense at all, was within the exclusive jurisdiction of the ecclesiastical courts. It was not an offense at common law and all penalties imposed were spiritual ones.

Not only obscenity but sex offenses in general had traditionally been under the exclusive jurisdiction of the ecclesiastical courts. Adultery and fornication, which were forbidden by the Bible, were civilly punished for the first time under the theocratic government of Cromwell, but during the Restoration they again fell under the exclusive control of the ecclesiastical authorities.

The next case of significance was the 1727 Curl case. Edmund Curl was prosecuted for "obscene libel" for publishing a book entitled "Venus in Cloister" or "The Nun in her Smock". The judges were troubled by the Read decision and by the fact that common law had not recognized as crimes acts which did not outright attack the church, government or tend to a breach of the peace. Curl's book, while not in direct violation of these issues, did cause an embarrassment of the Church by discussing sex of its members. Counsel for Curl attempted to use the Read case to have the indictment quashed; but the Attorney General, while admitting the lack of precedent for his position, argued that acts should be considered disruptive of the King's peace and therefore forbidden by common law. The government argued that acts which corrupt the morality of the publicc at large are "against the peace of the King's" even though acts of immorality that effect only individuals, such as fornication, are not- public offenses punishable by common law.

The court found precedent for the conviction of Curl in the Sedley case by saying that Sedley was not distinguishable because of the showering of the public with urine and because of the violence which had provoked. The court reasoned that the more important part of Sedley's offense was his nakedness. The court held it to be an offense properly within its jurisdiction, for it said that religion was part of common law; and therefore, whatever is an offense against religion is evidently an offense against common law. They reasoned that morality is the fundamental part of religion; and therefore, whatever strikes against religion must for the same reason be an offense against common law. The Taylor case, cited as an authority for the proposition that offenses against morality are common law offenses, was a case where the defendant had been convicted for calling Christ a bastard and a whoremonger and because he called religion a cheat.

Curl's case established that a person could be punished by common law as a violator of the King's peace (although no force or threat of violence was involved in the action). As illustrated earlier, the law before Curl punished authors of publications that were seditious or heretical or which tended to provoke an actual breach of peace. Curl added to the category of punishable works those which directly discredited established religion or its servants in written form.

Eighteenth century legal writers treated the offense of obscene libel created by Curl as an offense against God. The obscenity cases which followed Curl similarly limited themselves to sexual material in the context of anti-religious works. In fact, material often referred to today as hardcore pornography circulated quite freely, because of the lack of anti-religious content.

A final case that sheds some light on the development of common law offense of obscenity is the 1809 case of Rex v Crunden. In that case the defendant was charged with bathing nude in the sight of homes. The court found the defendant guilty of the crime charged but freed him since this was "the first prosecution, of this sort in modern times". Until then, immorality and immodesty, apart from anti-religious behavior or seditious behavior or behavior provoking violence, had not been punished.

During this period "guardians" of public morals made their appearance and stimulated governments to suppress obscene writings. It was within this framework that the Society for the Suppression of Vice was founded in England in 1802.

During the 19th century obscenity laws were given content in England. Near the beginning of the century, common law had to a point where it was being applied to prohibit purely sexual works which did not attack or libel religious institutions. This practice led to the first obscenity legislation in England and was incorporated in Vagrancy Act of 1824. The act prohibited exposing an obscene book or print in public places. In 1857 the Lord Campbell's Act was passed and it prohibited the dissemination of obscenity. This act permitted attacks on material that currently was considered to have a literary value.

A definition of obscenity was formulated in 1868 in Queen v. Hicklin. The case involved an anti-religious pamphlet entitled "The Confessional Unmasked", showing the depravity of the Roman priesthood, the iniquity of the confessional and the questions put to females in confession. A local magistrate, Justice Benjamin Hicklin, ordered the pamphlet seized and destroyed; although about half of the pamphlet was argumentative and not obscene. In Magistrate Hicklin's view, the publication discussed intercourse and fellatio among other topics. Therefore, it rendered the entire work taboo. Although Hicklin's action was reversed by an intermediate court, but the case was appealed, and in 1868 the Chief Justice, Sir Alexander Cockburn, reinstated Hicklin's orders. In doing so, a test of obscenity was framed in law.

The test of obscenity laid down by the court did not, however, limit itself to the anti-religious aspect; instead, a general test of obscenity was adopted. .Chief Justice Cockburn did not base the existence of obscenity on the intention of the authors. Instead, he said that the test of obscenity was whether the tendency of the matter charged as obscenity was to deprave and corrupt minds which are open to such immoral influences and into whose hands the publication may fall. The test.of morality was what a father could read aloud in his own home.

There were many successful prosecutions of pornography and the law was also invoked against works of literary merit and works with a social or moral purpose. In addition to prosecutions, other sanctions were also used. (Seizure of books by the post office, customs officials, or police; and their subsequent destruction).

The law was subject to continuous attack, because for it was felt that it often compelled authors to falsify social realities. The law was also attacked for reducing literary standards to the level of what was morally proper for the young. The applicatio, of the law by judges in specific cases was also attacked, because judges permitted prosecutions on the basis of isolated passages. Judges also refused to permit evidence of the author's intent or purpose or his literary reputation, or testimony of recognized literary critics. The law was also attacked because the prosecutions were often directed against book material sellers who were indifferent to the fate of the attacked.

In the United States "obscenity" never had strong roots as a common law offense. The reasons offered are that early colonists were unconcerned with depiction of sex largely because there was little or none in circulation. The life of a typical colonist during this period was one of hard physical labor. Therefore, the general disinterest in pornography may be attributable to a lack of leisure time. In the Massachusetts colony a fundamental interest was to uphold the religious faith. From the beginning of its existence, the colonial authorities freely dispensed punishment for such religious crimes as swearing and working on Sunday, and until the late 1600's, punishment for blasphemy included the death penalty.

As in England, censorship in America was directed toward antireligious works rather than sexual material. A statute passed in Massachusetts in 1711 read that "evil communication, wicked, profane, impure, filthy and obscene songs, composures, writings or prints do corrupt the mind and are incentives to all manner of impieties and debaucheries, more especially when digested, composed or uttered in imitation or in mimicking or preaching, or any other part of divine worship". Further, the law, prohibited the "composing, writing, printing, or publishing of any filthy, obscene or profane song, pamphlet, libel or mock sermon, in imitation of preaching, or any other part of divine worship". This statute, although closely related to antireligious material, was applicable to solely sexual material as well. There are, however, no recorded prosecutions under the Massachusetts statute until the 1821 "Fanny Hill" case.

in 1821, Massachusetts prosecuted the first case involving an illustrated book "Fanny Hill". Prosecution of the case, Commonwealth v. Holmes, was brought against the publisher, Peter Holmes, and resulted in his conviction based upon an illustration in the book and the text. This prosecution involved common law because the illustrations were not prohibited by the statute.

The first obscenity case in the United States arose in 1815 in Pennsylvania, where there was no obscenity statute in existence. The case, Commonwealth v. Sharpless, involved the showing of a picture movie, although not in public for profit, charged as being "lewd, wicked, scandalous, infamous, and obscene, representing a man in an obscene, impudent, and indecent, posture with a woman, to the manifest corruption and subversion of youth, and other citizens of this commonwealth, to the evil example of all others in like case offending, and against the place and dignity of the Commonwealth of Pennsylvania." The indictment also charged that defendants were guilty of "designing, contriving and intending the morals, as well of youth and other citizens of this commonwealth, to debauch and corrupt, and to raise and create in their minds inordinate and lustful desires." The defendants argued, as had Read and Curl, that they could not be convicted of such a crime without any statute prohibiting their conduct. The court found, however, that the defendants had violated public decency and thereby committed a legal offense. The court relied on the Sedley case in reaching its conclusion that acts of public indecency were indictable under common law.

Henceforth, it was legislature rather than common law court decisions that headed the anti-obscenity movement in this country. In 1821, the State of Vermont passed the first obscenity statute in the United States., In 1834, Connecticut followed with a statute and in 1835, Massachusetts amended its colonial law to extend the ban on obscenity to importation and distribution and included prints, pictures, figures and descriptions. The updated statute was not as religiously affiliated as the old one and a test of obscenity was included for the first time. This test was whether the work is "manifestly tending to the corruption of the morals of youth."

The first federal anti-obscenity statute was passed in 1842. It was a customs law aimed at the narrow problem of importing obscene material. The law directed the seizure and destruction "of all indecent and obscene prints, painting, lithographs, engravings and transparencies"; and like the English customs statute, was apparently aimed at the French postcard trade.

In 1868, Anthony Comstock, a grocery store clerk in New York City, took it upon himself to investigate and report to prosecutors violations of the recently enacted legislation prohibiting the dissemination of obscene literature. Comstock was supported by community's Protestant leaders and members of the Young Men's Christian Association. Both groups had supported the creation of obscenity legislation. In 1873 the Committee for the Suppression of Vice was created in New York City. Comstock was the committee's chief Washington lobbyist and as a result of Comstock's efforts, Congress broadened the 1865 Federal Mail Act to include pornography.

By the end of the 19th century, at least 30 states had some form of prohibition on the dissemination of "obscene" materials. The definition of "obscene," used in federal and states prohibition on the dissemination of obscene materials was the definition reached in the Queen v. Hicklin case in 1868. This definition remained in force until a 1957 decision by the United States Supreme Court set the pattern under which we enforce obscenity matters today. Before addressing this particular decision, a brief presentation of case law development affecting the area of censorship is in order.

In the 1920's a case came before the Supreme Court involving measures designed to restrict freedom of publication. A weekly "hate sheet" that regularly excoriated the Jews was being turned out in Minneapolis by J.M. Near. The case dealt with the right of the municipal officials to suppress the publication. The high court, in a five to four decision, ruled against all prior restraints which. had been imposed on the paper.

New York had a statute directed against sadistic literature, which read as follows: "It is a misdemeanor to sell any publication principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures or stories of deeds of bloodshed, lust or crime". In-1941 Murray Winters was found guilty of possessing more than two thousand copies of a magazine titled "Headquarters Detectives". The magazine featured articles with titles such as "Bargains in Bodies", "Girl Slave to a Love Cult" and "Girls Reformatory." In 1948 the Supreme Court, in a six to three decision, reversed the conviction ruling that restrictions imposed on freedom of expression were void if the law was vague and-uncertain.

The Esquire magazine of the 1940's was similar to today's Playboy. Sex tended to dominate a number of its stories and articles; however, it was not deemed obscene. The Postmaster General reasoned that second class mailing privileges were intended by Congress to be provided for magazines "published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or some special industry." With this thought in mind the Postmaster General suspended Esquire's second class mailing privileges. The impact of the high court's ruling was to declare that an item was not censorable solely because it failed to "contribute to the public Good and the public welfare."

In 1957 the Supreme Court reversed the Michigan conviction of a book distributor, Alfred E.. Butler, who had been convicted of selling a novel titled "Devil Rides Outside". The book detailed the moral story of a young man's struggle against lust while staying in a French monastary. The Michigan court ruled that the book violated a state statute that had barred sales to the general public of books "containing obscene, immoral, lewd or lascivious language." Supreme Court Justice Felix Frankfurter wrote: "The State insists that, by thus quarantining the general reading public against books not too rugged for grown man and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig. We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading what is fit for children."

In Roth v. United States, 35 U.S. 476 (1957), the defendant, who published and sold books, was charged with violation of the federal obscenity statute. In a companion case, Alberts v. California, 354 U.S. 476 (1957), the defendant, Alberts, conducted a mail order business in the State of California. He was also charged with.violation of the State's obscenity laws for selling obscene, lewd, and indecent books. For the first time a constitutional issue involving the First and Fourteenth Amendments was raised. The decision centered on whether these obscenity laws violated the First Amendment's freedom of speech, and the due process clause of the Fourteenth Amendment. The defendant argued that the wording of the respective statutes did not provide reasonable definite standards of guilt so that people could understand and conform their conduct to the requirements of the laws.

The Court held that the statutes were constitutional; and that obscenity laws designed to protect the morals of the people do not infringe on the area of protected speech or expression under the First Amendment. Also, that the wording of the statutes gave adequate warning of the types of conduct which was prohibited.

The Roth formulation, at first glance, may not seem difficult. The five Justices declared that if "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest" the matter. was obscene. Thus, the Court established the broad rule that obscenity was not constitutionally protected. However, in later case the problem become one of defining the terms: "average person," "community standards," "prurient interests" and "dominant theme."

Nine years later in Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Court held: "The Supreme Judicial Court erred, in holding that a book need not be *unqualifiedly worthless before it can be deemed obscene'. A book cannot be proscribed unless it is found to be utterly without redeeming social value." While Roth presumed "obscenity" to be "utterly without redeeming social value," Memoirs required that to prove obscenity it must be affirmatively established that the material is "utterly without redeeming social value." Therefore, even as they repeated the words of the Roth decision, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove that the material was "utterly without redeeming social value" a burden extremely difficult to discharge under our standards of proof.

In the case of Paris Adult Theater v. Slaton, 413 U.S. 49 (1973), the Court said that even though obscene materials are shown' only to consenting adults, the state has a right to challenge such materials and, if found to be offensive, to prevent their sale and distribution. The United States v. Orito, 413 U.S. 139 (1973) case was decided the same day the Supreme Court held that Congress has the power to prevent obscene material from entering the stream of commerce. The Court held that the 1969 Stanley case, which protected the right of people to keep obscene materials in the privacy of their homes, did not extend beyond the home. Therefore, although a person can have such material at home, it appears he or she could have difficulty transporting it there. Another significant 1973 case dealing with the definition of obscenity was Kaplan v. California, 413 U.5. 115 (1973). The Court simply said that books without pictures can be obscene.

The most important of the 1973 decisions was the Miller case, which resulted in the Court's setting guidelines for the term "obscenity." In Miller v. California, 413 U.S. 15 (1973) the Court stated: "The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court set forth the following examples of what a state statute could define for regulation under part (b) of the standard set forth above: (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and (b) patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals.

Also, similar federal guidelines were set down in the United States v. 12 200 Ft. Reels of Super 8mm Film, 413 U.S. 123 (1973). The Court stated that for purposes of the federal statutes the court was prepared to construe prong (b) of the test to encompass the conduct set forth as examples in the miller case. Therefore, a proper statement of the test for obscenity in federal cases would be as follows: (a) whether the average person, applying contemporary standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct including, but not limited to, representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, or representations or descriptions of masturbation, excretory functions, or lewd exhibition of the genitals, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The most recent Supreme Court decision regarding obscenity was the William Pinkus, dba "Rosslyn News Company" and Kamera v. United States decided on May 23, 1978. This case established guidelines for a definition of the "community" by whose standards obscenity was to be judged, the court held that children are not to be included as part of the "community" as that term relates to the "obscene materials" proscribed by 18 U.S.C. S1461, and hence it was error to instruct the jury that children are part of the relevant community. A jury conscientiously striving to define such community, the "average person" by whose standards obscenity is to be judged, might very well reach a much lower "average" when children are part of that equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults. However, inclusion of "sensitive persons" in the charge advising the jury of whom the community consists was not an error. In the context of this case, the community includes all adults who compose it, and a jury can consider the, all in determining the relevant community standards. Nothing prevents a court from giving an instruction on prurient appeal to juries as part of an instruction pertaining to appeal to the average person.

The pandering instruction, which permitted the jury to consider the touting descriptions in the advertising brochures, along with the materials themselves, to determine whether the materials were intended to appeal to the recipient's prurient interest or, whether they were "commercial exploitation of erotica-solely for the sake of their prurient appeal. The tracing of these rulings clearly indicate the difficult task faced by the courts. On one hand, the delicate issues of constitutionality have to be met; and on the other, society demands protection, in areas of obscenity. The problems of law enforcement are equally difficult. Unlike most other crimes where the elements of the offense are spelled out quite vividly, in obscenity matters that is not the case. There is no way for police to know if a crime is being or has been committed because they have no way of knowing what a community will regard as obscene.