Stern on Defining Obscenity Before Hicklin: Corrupting Texts in the Seventeenth and Eighteenth Centuries @ArsScripta

Simon Stern, University of Toronto Faculty of Law, is publishing Defining Obscenity before Hicklin: Corrupting Texts in the Seventeenth and Eighteenth Centuries in Literature on Trial (Sylvia Sasse and Matthias Meindl, eds.).

The “young person” has often served as one of the primary objects of solicitude for the regulation of obscenity, and while this figure was invoked often during the eighteenth and nineteenth centuries, it did not provide the only rationale; regulators were also concerned more broadly with public morals. This essay considers these rationales in English legal history, starting with late seventeenth century, which marks the earliest instances in which obscenity was expressly the basis for prosecution. The discussion shows how criminal prohibitions against obscenity were rejected in Read (1707) and resurrected in Curll (1727), and discusses the intermittent prosecution of obscene works in the later eighteenth century. The discussion also shows that the intent of the author or publisher had never provided a defense, even in the earliest cases. Although Hicklin (1868) is often characterized as the decision that eliminated intent from the analysis of obscenity, that decision merely reaffirmed what had always been the law.

Download the essay from SSRN at the link.

Acevedo on Law's Gaze @UALawSchool

John Acevedo,  University of Alabama School of Law, has published Law's Gaze as University of Alabam Legal Studies Research Paper No. 3694579. Here is the abstract.

When looking at a sexualized image the viewer is both subject and object of the artwork because the gaze of the viewer is turned back on themselves. Thus, the Supreme Court's jurisprudence on obscene speech tells us more about the viewer of an image than we do about the image itself. The existence of the gaze is revealed in the Court’s obscenity jurisprudence and its inability to settle on a definition of obscenity for most of the 20th century. In all of these instances the court looks upon pornographic materials as the object upon which the court gazes, but in reality the nature of these materials flips the view so the Court becomes the object on which pornography gazes At the same time the fixation on criminalizing obscenity has led to the silencing of the models who appear in sexual images. Drawing on social theories, this article argues that the failure of obscenity law was inevitable because at the heart of obscenity lies unending subjectivity. This subjectivity means that obscenity should be protected under the First Amendment. But it also proposes changes to the law that will continue to protect children and give voice to models.

Download the article from SSRN at the link.

Amy Werbel's New Book on Anthony Comstock and Censorship in the Gilded and Progressive Periods; "Lust on Trial" @awerbel @LustonTrial @ColumbiaUP

Amy Werbel, Fashion Institute of Technology, State University of New York, is publishing Lust on Trial:Censorship and the Rise of American Obsenity in the Age of Anthony Comstock (Columbia University Press).  Here from the publisher's website is a description of the book's contents.

Lust on Trial offers a new and unadulterated view of the risqué behaviors and complex sexualities of Americans in the Gilded Age and Progressive Eras, and a fresh perspective on legal efforts to expand civil liberties before World War I. Extensive new research conducted in dozens of public and private archives makes it possible for the first time to fully tell the story of Anthony Comstock’s censorship of American visual culture, and to publish examples of the “obscenities” he suppressed. Lust on Trial illuminates the complex relationship between censorship and cultural change, and offers thought-provoking insight to our nation’s long struggle to live up to the promise of the First Amendment.

The Legal Fight Over "Fanny Hill"

Simon Stern, University of Toronto Faculty of Law, is publishing Fanny Hill and the 'Laws of Decency': Investigating Obscenity in the Mid-Eighteenth Century in volume 40 of Eighteenth-Century Life (2016). Here is the abstract.

This essay discusses John Cleland's novel The Memoirs of a Woman of Pleasure (1748/9, better known as Fanny Hill), in the context of eighteenth-century obscenity law and the law of search and seizure. To explain why obscenity could have been treated as a criminal offense at all, the essay discusses prosecutions against writers and actors from the later seventeenth century through Cleland's time, showing how the criminality of the offense was taken for granted (circa 1670-1700), then rejected (in 1708), and then rationalized (in 1727). Cleland's novel, notable for resorting to metaphorical and euphemistic language so as to avoid "rank words," was nevertheless easily covered by the rationale offered in Curll (1727), but his case was never brought to trial. While some have thought that this circumstance is mysterious and requires explanation, in fact obscene works were rarely prosecuted at this time, and the decision even to begin proceedings against Cleland is more notable than the decision not to go to trial. Cleland implied, in some of his letters, that he believed his circumlocutory language should have excused him from prosecution, but his stronger argument would have involved the process that led to his arrest: the investigation proceeded by means of a general warrant, a device that would be criticized in the litigation after the 1763 Wilkes prosecution, which in turn influenced the prohibition against unreasonable searches and seizures in the Fourth Amendment to the US Constitution. Along the way, the essay discusses several famous but inaccurate claims about the prosecution of Cleland and his publishers (e.g., that Cleland was paid to stop writing obscene novels, and that his publishers made a fortune from the book), and also includes a list of eighteenth-century editions of Fanny Hill.

Download the article from SSRN at the link.

Comics and Law

Marc Greenberg's  Comic Art, Creativity and the Law (Elgar, 2014), will be published in paperback in August 2015 and will be priced at $29.95 (discounted to $23.96 at the publisher's website). The author is Professor of Law, Golden Gate University School of Law.  Here's a description of the contents from the publisher's website.

The characters and stories found in comic art play a dominant role in contemporary popular culture throughout the world. In this first-of-its-kind work, Comic Art, Creativity and the Law examines how law and legal doctrine shapes the creative process as applied to comic art. The book examines the impact of contract law, copyright law (including termination rights, parody and ownership of characters), tax law and obscenity law has on the creative process. It considers how these laws enhance and constrain the process of creating comic art by examining the effect their often inconsistent and incoherent application has had on the lives of creators, retailers and readers of comic art. It uniquely explains the disparate results in two key comic book parody cases, the Winter Brothers case and the Air Pirates case, offering an explanation for the seemingly inconsistent results in those cases. Finally, it offers a detailed discussion and analysis of the history and operation of the 'work for hire' doctrine in copyright law and its effect on comic art creators.Designed for academics, practitioners, students and fans of comic art, the book offers proposals for changes in those laws that constrain the creative process, as well as a glimpse into the future of comic art and the law.

Prosecuting Dorian Gray

Simon Stern, University of Toronto Faculty of Law, is publishing The Trial of Dorian Gray in Dorian Gray in the Twenty-First Century (Richard Kaye, ed.; Oxford University Press, forthcoming). Here is the abstract.

Wilde’s three trials in 1895 served, in effect, as an obscenity prosecution of The Picture of Dorian Gray (1890/91). Though the novel was not formally charged with obscenity, Dorian Gray’s first reviewers suggested that it was obscene, and the book remained unavailable in England for nearly two decades after Wilde’s trials. The novel's relation to Wilde's trials thus raises a number of questions about the use of fiction as legal evidence and about the ways in which a criminal prosecution might be taken to reveal the meaning of the defendant's writings. This essay discusses the late Victorian campaign against obscene literature and the victims of that campaign; the reviews of the original version of Dorian Gray (in Lippincott's Magazine, 1890); the oblique manner in which the innuendo about its obscenity functioned during Wilde's three trials (1895); Wilde's own ironic engagement, at several key points in the novel, with the conception of influence at work in the legal test governing the evaluation of obscenity (R. v. Hicklin, 1868); the relation of the painting itself, and of the notorious French novel that Dorian borrows from Lord Henry, to that conception of influence; and Wilde's reenactment of his ironic perspective at the narrative level.

Download the essay from SSRN at the link. 

Edward de Grazia Dies

Edward de Grazia, the distinguished First Amendment lawyer, civil rights advocate, and  Law and Humanities Institute founding board member, has died. Mr. de Grazia handled important cases for publisher Barney Rosset of Grove Press, and wrote several influential books about free speech, including Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (Random House, 1992). Mr. de Grazia also helped found the Cardozo Law School of Yeshiva University. More here from the Washington Post. 

Championing Beckett, Malcolm X, and Erotica

From the New York Times, two appraisals, by Douglas Martin and Charles McGrath, of the career and contributions of Barney Rosset (1922-2012), who guided Grove Press. Over the years, Mr. Rosset defended many of the titles he published, in court and in the media. The work he brought to the attention of the public included Malcolm X's autobiography, Frederick Wiseman's documentary "Titicut Follies," the work of Samuel Beckett, Henry Miller, Eric Berne's "Games People Play," and, oh yes, that Swedish entry, "I Am Curious Yellow."

The Dialectic of Obscenity

Brian L. Frye, Hofstra University School of Law, has published The Fortas Film Festival as Hofstra University Legal Studies Research Paper No. 11-10. Here is the abstract.

The story of Jack Smith’s film Flaming Creatures and the “Fortas Film Festival” illustrates the dialectic of obscenity. The obscenity doctrine expresses the conventional wisdom that the First Amendment actually protects art, and protects pornography only by extension. But Flaming Creatures and the Fortas Film Festival suggest that obscenity is dialectical. The obscenity doctrine provides the thesis: art protects pornography, by justifying the protection of sexual expression. Flaming Creatures and the Fortas Film Festival provide the antithesis: pornography protects art, by normalizing sexual expression. The history of obscenity law provides the synthesis: art and pornography protect each other. In other words, art transgresses and pornography reifies.

Download the paper from SSRN at the link.

Bloomsday

Happy Bloomsday. On December 6, 1933, Judge John Woolsey ruled that James Joyce's Ulysses could be imported into the United States, since it was not, as the United States government maintained, obscene. The Second Circuit affirmed. United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706 (2d Cir. 1934).

And just in time, Apple has done a 180 on its attitude toward Robert Berry's Ulysses app. Yesterday his images were too, well, nude for the Job(s).

More on Bloomsday from the L.A. Times, Bloomsdayrun.org, the James Joyce Centre, and the New York Times.

Bibliography:

Corn-Revere, Robert, New Age Comstockery, 4 CommLaw Conspectus 173 (1996).

Ernst, Morris L., Reflections on the Ulysses Trial and Censorship, 3 James Joyce Quarterly 3-11 (Fall 1965).

Gillers, Stephen, A Tendency to Deprave and Corrupt: The Transformation of American Obscenity Law from Hicklin to Ulysses, 85 Washington University Law Review 215–96 (2007)
Pagnattaro, Marisa Anne, Carving a Literary Exception: The Standard and Ulysses, (Summer 2001).

Segall, Jeffrey, Joyce in America: Cultural Politics and the Trials of Ulysses (Berkeley: University of California Press, 1993).

Vanderham, Paul, James Joyce and Censorship: the Trials of Ulysses New York: New York University Press (1998).

Younger Irving, "Ulysses in Court: The Litigation Surrounding the First Publication of James Joyce's Novel in the United States", in Classics of the Courtroom (James W. McElhaney ed.; PEG, 1989).