Hicklin test
Encyclopedia
The Hicklin test is a legal test for obscenity
established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857
, which authorized the destruction of obscene books. The court held that all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit.
, also known as Lord Campbell’s Act. Lord Campbell, the Chief Justice of Queen's Bench, introduced the bill, which provided for the seizure and summary disposition of obscene and pornographic materials. The Act also granted authority to issue search warrants for premises suspected of housing such materials.
Regina v. Hicklin involved one Henry Scott, who resold copies of an anti-Catholic pamphlet entitled "The Confessional Unmasked: shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession." When the pamphlets were ordered destroyed as obscene, Scott appealed the order to the court of Quarter Sessions
. Benjamin Hicklin, a London magistrate who was in charge of such orders as Recorder
, revoked the order of destruction. Hicklin held that Scott's purpose had not been to corrupt public morals but to expose problems within the Catholic Church; hence, Scott's intention was innocent. The authorities appealed Hicklin's reversal, bringing the case to the consideration of the Court of Queen's Bench
.
Chief Justice Cockburn
reinstated the order of the lower court, holding that Scott's intention was immaterial if the publication was obscene in fact. Justice Cockburn reasoned that the Obscene Publications Act allowed banning of a publication if it had a "tendency ... to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." Hicklin therefore allowed portions of a suspect work to be judged independently of context. If any portion of a work was deemed obscene, the entire work could be outlawed.
In the United States, adoption of the Hicklin standard was largely due to the efforts of Anthony Comstock
. Comstock's intense lobbying led to the passage of a new anti-obscenity statute known as the Comstock Act. In 1873, Congress passed the Act and appointed Comstock as postal inspector to enforce the new law. The law criminalized not only sexually excplicit material, but also material dealing with birth control and abortion. Although lower courts in the U.S. had used the Hicklin standard sporadically since 1868, it was not until 1879, when prominent federal judge Samuel Blatchford
upheld the obscenity conviction of D. M. Bennett
using Hicklin, that the constitutionality of the of the Comstock Law
became firmly established.
. In Roth, Justice Brennan
, writing for the majority, noted that some American courts had adopted the Hicklin standard, but that later decisions more commonly relied upon the question of "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." This was essentially the new definition of obscenity applied in Roth.
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857
Obscene Publications Act 1857
The Obscene Publications Act 1857 , also known as Lord Campbell's Act or Campbell's Act, was a major piece of obscenity legislation in the United Kingdom of Great Britain and Ireland...
, which authorized the destruction of obscene books. The court held that all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit.
History
The modern English law of obscenity began with the Obscene Publications Act 1857Obscene Publications Act 1857
The Obscene Publications Act 1857 , also known as Lord Campbell's Act or Campbell's Act, was a major piece of obscenity legislation in the United Kingdom of Great Britain and Ireland...
, also known as Lord Campbell’s Act. Lord Campbell, the Chief Justice of Queen's Bench, introduced the bill, which provided for the seizure and summary disposition of obscene and pornographic materials. The Act also granted authority to issue search warrants for premises suspected of housing such materials.
Regina v. Hicklin involved one Henry Scott, who resold copies of an anti-Catholic pamphlet entitled "The Confessional Unmasked: shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession." When the pamphlets were ordered destroyed as obscene, Scott appealed the order to the court of Quarter Sessions
Quarter Sessions
The Courts of Quarter Sessions or Quarter Sessions were local courts traditionally held at four set times each year in the United Kingdom and other countries in the former British Empire...
. Benjamin Hicklin, a London magistrate who was in charge of such orders as Recorder
Recorder (judge)
A Recorder is a judicial officer in England and Wales. It now refers to two quite different appointments. The ancient Recorderships of England and Wales now form part of a system of Honorary Recorderships which are filled by the most senior full-time circuit judges...
, revoked the order of destruction. Hicklin held that Scott's purpose had not been to corrupt public morals but to expose problems within the Catholic Church; hence, Scott's intention was innocent. The authorities appealed Hicklin's reversal, bringing the case to the consideration of the Court of Queen's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
.
Chief Justice Cockburn
Sir Alexander Cockburn, 12th Baronet
Sir Alexander James Edmund Cockburn, 12th Baronet Q.C. was a Scottish lawyer, politician and judge. A notorious womaniser and socialite, as Lord Chief Justice he heard some of the leading causes célèbres of the 19th century.-Life:Cockburn was born in Alţâna, in what is now Romania and was then...
reinstated the order of the lower court, holding that Scott's intention was immaterial if the publication was obscene in fact. Justice Cockburn reasoned that the Obscene Publications Act allowed banning of a publication if it had a "tendency ... to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." Hicklin therefore allowed portions of a suspect work to be judged independently of context. If any portion of a work was deemed obscene, the entire work could be outlawed.
In the United States, adoption of the Hicklin standard was largely due to the efforts of Anthony Comstock
Anthony Comstock
Anthony Comstock was a United States Postal Inspector and politician dedicated to ideas of Victorian morality.-Biography:...
. Comstock's intense lobbying led to the passage of a new anti-obscenity statute known as the Comstock Act. In 1873, Congress passed the Act and appointed Comstock as postal inspector to enforce the new law. The law criminalized not only sexually excplicit material, but also material dealing with birth control and abortion. Although lower courts in the U.S. had used the Hicklin standard sporadically since 1868, it was not until 1879, when prominent federal judge Samuel Blatchford
Samuel Blatchford
Samuel Blatchford was an Associate Justice of the Supreme Court of the United States from April 3, 1882 until his death.-Early life:...
upheld the obscenity conviction of D. M. Bennett
D. M. Bennett
DeRobigne Mortimer Bennett was the founder and publisher of The Truth Seeker, a radical freethought and reform American periodical. Bennett was a devout member of the Shakers for 13 years before evolving into a "freethinker", founding The Truth Seeker newspaper in 1873...
using Hicklin, that the constitutionality of the of the Comstock Law
Comstock Law
The Comstock Act, , enacted March 3, 1873, was a United States federal law which amended the Post Office Act and made it illegal to send any "obscene, lewd, and/or lascivious" materials through the mail, including contraceptive devices and information. In addition to banning contraceptives, this...
became firmly established.
Demise of the Hicklin test in the United States
In 1957, the Hicklin test of obscenity was superseded by Roth v. United StatesRoth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
. In Roth, Justice Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
, writing for the majority, noted that some American courts had adopted the Hicklin standard, but that later decisions more commonly relied upon the question of "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." This was essentially the new definition of obscenity applied in Roth.