Obscenity Rules: Roth v. United States and the Long Struggle over Sexual Expression

Chapter 1. Toward Obscenity: Legal Evolution from Colonies to Comstock

c h a p t e r 1 Toward Obscenity Legal Evolution from Colonies to Comstock { 5 } When Justice William Brennan, writing for the majority in Roth v. United States, excluded obscenity from the protections afforded by the First Amendment, he strove to ground that outcome in the broader currents of American history. Brennan argued that the Court in 1957 was simply making manifest a status already implicit in the legal record, not carving out a new exception to free expression. Much of Brennan’s argument hinged on his assertion that “the unconditional phrasing of the First Amendment was not intended to protect every utterance” and that obscenity had never been understood as a part of the “unfettered interchange of ideas” undergirding freedoms of speech or press. This historical trajectory played a central role in Brennan’s analysis . Yet Brennan’s exposition proved remarkably thin. Other justices sometimes delivered major opinions on matters ranging from labor law to interstate commerce regulation in the form of miniature monographs , dense and extensive in their attention to detail. Brennan’s survey of history in Roth occupied a mere few paragraphs. Leaping from a 1712 Massachusetts law to the Continental Congress and from there to the 1860s, Brennan’s opinion lacked any sense of historical context or social change over time. Its blunt, broad brushstrokes did not, however, err on the core idea: nowhere in the mainstream currents of American legal, political, or cultural thought had free speech ever been absolute, or obscenity ever acceptable. From the preconstitutional social regulation of blasphemy, to the early republic’s effortless absorption of obscenity into the common law, and on into the gradual state-level passage of obscenity statutes in the midnineteenth century, obscenity had never joined other forms of expression in the imagined marketplace of ideas. The 1873 Comstock Act began to craft a piecemeal legal regime 6 { Chapter 1 } into something moving toward cohesion. Its passage, though, marked not the beginning but simply the clarification and expansion of obscenity regulation in the United States. Much would change by the time Brennan and the Court upheld its legal structure, but the continuity he saw running from the colonies to the Eisenhower years was not a complete fabrication. Blasphemous Origins The evolution of the colonies into states had witnessed very little concern over possible tension between protecting freedom of speech while prohibiting profanity or blasphemy (understood, broadly, as a defamation of religion). Of the fourteen states to ratify the Constitution by 1792, ten guaranteed freedom of speech, with the 1776 Virginia Declaration of Rights leading the way. In strong language, it called freedom of the press “one of the great bulwarks of liberty,” which could “never be restrained but by despotick governments.” Phrasing among the other states varied, but the theme remained consistent. Yet these broad declarations of liberty coexisted with restrictions. Most participants in these discussions understood the celebrated freedoms to pertain primarily to political speech—and assumed that category as self-evident rather than carefully defining it. Civil actions against slander (purely verbal expression) or libel (written), for instance, were nowhere regarded as infringing on free speech. As Brennan later observed, thirteen of those first fourteen states also made blasphemy or profanity statutory crimes. He linked this to obscenity, showing that a 1712 Massachusetts law had criminalized the publishing of “any filthy, obscene, or profane song, pamphlet, libel, or mock sermon.” But Massachusetts was the only colony to specifically criminalize obscenity. In part, this reflected the simple fact that social concern over obscenity remained minimal among the colonies. Between the virtual nonexistence of the domestic press and the scarcity of foreign texts, the circulation of obscene materials posed little social threat. Even the Massachusetts law mentioned obscenity only in passing, positioning it as merely one corollary form of blaspheming the church through sexualized means. The colonies had imported a hodgepodge assemblage of English common law (law based on the judicial prece- { Toward Obscenity } 7 dents of court decisions, as opposed to the statutory law passed by legislatures ), which only in 1727 formally articulated obscenity as a criminal offense, in the case of Regina v. Curll. Technically, obscenity constituted a libel. As a civil offense, libel consisted of defamatory statements about an individual. When such defamation targeted monarch or deity, however, it became criminal— seditious libel or blasphemous libel, respectively. Obscene libel presented a third variant, and Curll defined the damage inflicted more broadly...