Intro.: Obscenity, like defamation and “fighting words,” was
listed in Chaplinsky as being a type of speech unprotected by the
First Am. because obscenity’s slight social value is not outweighed
by protecting it under the First Am. But again, as with defamation,
the states are no longer completely free to define obscenity however
they wish, and to then punish the distribution or sale of the
material so defined. Instead, the Supreme Court has attempted to lay
down specific guidelines for what materials may, compatibly with the
First Amendment, be punished as “obscene.” In the first half of the
twentieth century, a number of famous books, including Henry Miller’s
sublime “kick in the pants of God” entitled Tropic of Cancer, all
fell afoul of the obscenity laws. In determining whether a work was
obscene, American courts followed the English case of Regina v.
Hicklin. The Hicklin test was: Whether the tendency of the material
charged as obscenity is to deprave and corrupt those whose minds are
open to this kind influence and whose had such matter is likely to
fall into. Note the “bad tendency” element of the Hicklen test.
Such a test could result in an entire work being censored, even
though only just a few passages of that work were “obscene” (an
example being Walt Whitman’s ode to democracy and youthful male
beauty entitled Leaves of Grass). It was not until 1957 with the
Roth case that the U.S. Supreme Court attempted to develop a new
definition of obscenity. But the Court’s various attempts in the
past few decades to define “obscenity” has turned out to be specific
enough to give legislatures and lower courts reliable guidance about
what materials are covered. Therefore, the Supreme Court has remained
very much in the business of deciding, case by case, whether given
materials meet the Court’s definition.
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