Roth at Fifty: Reconsidering the Common Law Antecedents of American Obscenity Law

John Marshall Law Review, Vol. 41 (Winter 2008): pp. 393-433

Midwest Political Science Association Conference, April 2007

41 Pages Posted: 23 Apr 2012

See all articles by James R. Alexander

James R. Alexander

University of Pittsburgh at Johnstown

Date Written: April 1, 2007

Abstract

Jurisprudential regimes in American obscenity law can be traced directly back through initial 19th century state court decisions in the United States to the English common law ruling in Regina v. Hicklin (1868), in which the basic elements of legal moralism and moralistic paternalism were established in the doctrinal gravitation from ecclesiastical and common law applications of criminal libel to statutory interpretation of obscene libel under the Obscene Publications Act of 1857. While the Hicklin decision is singly renowned for enunciating the first legal definition of obscenity, it must also be recognized for framing the public rationale for the regulation of obscenity, opening up the broader discussion of the circumstances of intent and effect under which expression or behavior considered objectionable could/should be regulated, and laying the foundation for statutory efforts to enact such regulation. Careful scrutiny of the legal antecedents of Hicklin and the politico- cultural context of in which it formed legal doctrine reveals the fundamental elements of current American obscenity debate, including controversial and still evolving areas of First Amendment jurisprudence such as art censorship and child pornography.

Keywords: first amendment, obscenity, common law, libel, legal moralism

Suggested Citation

Alexander, James R., Roth at Fifty: Reconsidering the Common Law Antecedents of American Obscenity Law (April 1, 2007). John Marshall Law Review, Vol. 41 (Winter 2008): pp. 393-433, Midwest Political Science Association Conference, April 2007, Available at SSRN: https://ssrn.com/abstract=2042689

James R. Alexander (Contact Author)

University of Pittsburgh at Johnstown ( email )

Johnstown, PA 15904
United States

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