Fourteenth Amendment and incorporation
After the Civil War, Congress passed (and the states ratified ) the 14th Amendment to the Constitution, which says in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law…” Gradually, the Bill of Rights was federalized, a process called “incorporation.”
The 14th Amendment was first used to apply the First Amendment to state law in Gitlow v. New York, 1925. The amendment set a precedent for the bedrock media law case, New York Times v. Sullivan, 1964.
| Prior restraint and obscenity in the 19th & early 20th centuries |
Social attitudes towards free speech have often lagged behind ideals expressed in law.
While the church persecuted very early books and engravings of an obscene nature in ecclesiastical courts, by the time Fanny Hill: Memoirs of a Woman of Pleasure by John Cleland was first published in 1749, British authorities took no notice. Trade in erotic literature grew in the 19th century.
By the 1830s, Booksellers Row in London (Holywell Street) had over 50 bookstores devoted to pornography. All had displays that attracted attention from passing thrill-seekers . The stores sold novels, erotic prints, etchings, and catalogues for prostitutes that featured their ‘specialities.’
In England, the Society for the Suppression of Vice led to the first of several laws that gave magistrates authority to issue warrants to seize and destroy obscene materials. Prosecution of “obscene libel” also became common as laws became more explicit in Victorian era.
Queen (Regina) v. Hicklin (1868 L. R. 3 Q. B. 360)- In 1857 the Lord Campbell Act was adopted to set a standard for obscenity in England. This was tested in 1868 when Henry Scott was brought up on charges for printing a pamphlet called “The Confessional Unmasked.” It was a piece of crude anti-Catholic propaganda that was part of the social turmoil around the Murphy Riots. Scott appealed to Benjamin Hicklin, a recorder in London, and although Hicklin ruled in Scott’s favor, this ruling was later overturned by Alexander Cockburn, Britain’s chief justice. Cockburn said:
“The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”
This came to be known as the Hicklin Rule because the case in question was Regina v. Hicklin. It set an early precedent for obscenity and was cited in American court cases in the 1800s and early 1900s. The rule allowed a publication to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults.
In the US, most of the censorship took place on the state level until after the Civil War. State censors tried, unsuccessfully, to ban Memoirs of a Woman of Pleasure in Massachusetts as early as 1821.
US Passes Comstock Laws
Freedom of speech and press did not apply to materials considered to be “obscene.” The US Tarrif Act of 1842 was the first federal law restricting imports of obscene material. It didn’t have much effect, and as the Victorian era dawned in America in the wake of the Civil War, self-styled crusaders set about improving America’s moral posture. The most successful of these was crusading moralist Anthony Comstock(1844 – 1915) who lobbied Congress for a “decency” bill.
The “Comstock Act” of 1873 banned any information whatsoever about family planning, abortion, venereal disease, contraceptives and reproductive health. Even a printed discussion of birth control was obscene and therefore not protected by the First Amendment.
Comstock was named a special agent of the Post Office and given free transportation to go wherever he wanted to enforce the law that carried his own name. He bragged later that he was responsible for 15 suicides and for sending enough people to jail to fill a 61 coach passenger train.
“Comstockery is the world’s standing joke at the expense of the United States. Europe likes to hear of such things. It confirms the deep-seated conviction of the Old World that America is a provincial place, a second-rate country-town civilization after all.” — George Bernard Shaw
Comstock was not only concerned about publications with dirty pictures. Like other social conservatives of the era, he worried that the women’s suffrage movement (to give women the vote) and new ideas about “free love” and even spiritualism were undermining American morality.
Indeed, propaganda against suffrage workers like Victoria Woodhull was fairly typical. At right, we see Woodhull as the devil with her free love doctrine trying to lure a woman with an alcoholic husband and a crying baby down the path away from salvation, not toward it.
Margaret Sanger defies Comstock
The power of “Comstockery” began to diminish when people started fighting back. A nurse who was shocked at the lack of scientific information about reproductive health and birth control named Margaret Sanger insisted on the free speech right to discuss birth control.
According to Peter Dreier, author of 100 Greatest Americans of the 20th Century:
In those days poor women tried a range of quack medicines and dangerous methods to end pregnancies, including knitting needles. A turning point for Sanger came when one of her patients died from a self-induced abortion. Sanger decided her life’s mission would be fighting for the right of low-income women to control their destinies and improve their health through family planning.
In 1914, Margaret Sanger published the Woman Rebel, which included frank discussions about contraception, and was indicted for violating the Comstock Acts. The newspaper was banned and Sanger was indicted for violating postal obscenity laws. She faced a potential 45 years in jail, but went into exile in England for several years. When the laws changed several years later, she returned to open clinics and continue her advocacy through a group that eventually became known as Planned Parenthood.
Comstock censorship seen as absurd
Naturally, many other Americans chafed at the absurdities of Comstockery. As is often the case, high-handed tactics were met with satire. For example, the propaganda about Victoria Woodhull (illustration above left with devil wings) was not necessarily meant to be taken seriously. Nor was Ogden Nash’s poem about Senator Smoot’s war on obscenity in 1930
Senator Smoot (Republican, Ut.)
Is planning a ban on smut.
Oh rooti-ti-toot for Smoot of Ut.
And his reverend occiput.
Smite, Smoot, smite for Ut.,
Grit your molars and do your dut.,
Gird up your l__ns,
Smite h_p and th_gh,
We’ll all be Kansas
By and by…
George Bernard Shaw, a famous playwright from the UK, said: “Comstockery is the world’s standing joke at the expense of the United States. Europe likes to hear of such things. It confirms the deep-seated conviction of the Old World that America is a provincial place, a second-rate country-town civilization after all.”
US versus Ulysses
The case that started to change all that involved James Joyce’s book Ulysses, one of the most frequently censored books of the early 20th century. In a federal case called One Book Entitled Ulysses v. US, the question of the Hicklin standard for obscenity was brought to trial in 1933.
Federal Judge John Woolsey found the book not obscene, and his decision in the case did not apply the Hicklin Rule, which was the standard at the time. One aspect of the Hicklin Rule stated that in order to determine a work’s obscenity, its effects on the most susceptible members of society had to be determined. In Ulysses v. US, Woolsey said that instead of the most susceptible members of society, its effects on the average person determine a workÕs obscenity. Furthermore, the Hicklin Rule allowed for a work to be judged by individual passages, which could be easily taken out of context. Woolsey based his judgment on the work as a whole.
The case was appealed, but the Appeals Court upheld Woolsey’s decision, and the Hicklin Rule was abolished in the US on the federal level.