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
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
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