Obscenity in the United States

1821

Massachusetts bans publication of Fanny Hill, or Memoirs of a Woman of Pleasure (1748) on grounds of obscenity, a ban that would remain in effect until 1966.

1873

The federal Comstock Act of 1873, which grants the post office the power to censor mail containing material that is "obscene, lewd, and/or lascivious," is passed. The law and its state-level counterparts are initially used primarily to target information on contraception rather than pornography, but soon become the primary vehicle for obscenity-related prosecutions.

1897

In Dunlop v. United States, the Supreme Court rules that print literature - including but not limited to risqué fiction and information on birth control - may be considered obscene under the Comstock law. The Dunlop standard is still current law, based on the 2005 prosecution of several Internet sites specializing in written online erotica graphically depicting illegal acts. As Chief Justice Warren Burger wrote in Kaplan v. California (1975), "[o]bscene material in book form is not entitled to any First Amendment protection merely because it has no pictorial content."

1921

The book that essentially established artistic merit as an affirmative defense against obscenity was James Joyce's Ulysses, which ran afoul of the New York Society for the Suppression of Vice in 1921 and faced a 12-year block on U.S. publication. The ban was overturned in the U.S. District Court ruling United States v. One Book Called Ulysses (1933), in which Judge John Woolsey's ruling began to roll back bans on the publication of controversial literary works.

1959

In 1959, three classic works of literature - D.H. Lawrence's Lady Chatterley's Lover, Henry Miller's Tropic of Cancer, and (finally) the long-banned, 211-year-old Fanny Hill - were finally released from embargo for U.S. publication thanks to an omnibus ruling by New York federal judge Frederick van Pelt Bryan, who reinforced the Ulysses standard and explicitly established "redeeming social or literary value" as a disqualifying factor for obscene works.

1964

In Jacobellis v. Ohio, the U.S. Supreme Court held that the French film Les Amants (The Lovers) was not obscene, but could not articulate exactly why. As Justice Potter Stewart wrote in the concurrence: "I shall not today attempt further to define the kinds of material I understand to be [obscene]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

1973

In Miller v. California, the Supreme Court sought to establish a clearer and more objective definition of obscenity. What it gave us was the Miller test, which held that a work must fulfill the following three criteria in order to be classified as obscene:

1. the average person must find that the work, taken as a whole, appeals to the prurient interest;
2. the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and
3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

There are many problems with this standard, one of the major ones being that the forms of obscenity that currently face prosecution are so offensive that the average person is not in fact likely to find them to be prurient in a conventional sense. Furthermore, literary and artistic value are subjective standards, political value can be determined by a case's relevance to obscenity law, and scientific value is technically present in all things. But the Miller test remains the clearest standard the Supreme Court has thus far been able to produce, and in that respect it has been a success.