Hicklin test

The Hicklin test is a legal concept stemming from the English case R. v. Hicklin (1868), LR 3 QB 360, in English Common Law. Put simply, it states that a legislature can outlaw anything that, "depraves and corrupts those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall."

The test asks "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences." If yes, then such was declared to be obscene. Also, the Hicklin Rule looked at the content in question not as a whole, but only in part. In other words, it did not consider the questionable material in relation to whole content.

The Hicklin test influenced the courts in the United States until Roth v. United States when it was superseded. ^[1]

History

One of the first formal attempts to restrict obscenity was the Obscene Publications Act 1857, also known as the Lord Campbell’s Act. The Act allowed material deemed obscene under common law to be seized and destroyed. The Hicklin Rule was named after Benjamin Hicklin, a magistrate in London following the Regina v. Hicklin court case in 1868.^[2] This case was brought against Henry Scott because he had created an offensive anti-Catholic booklet called “The Confessional Unmasked.” The magistrates convicted Scott, but the recorder at Quarter Sessions reversed the decision on appeal, holding that the intention was innocent. The matter was reserved for the consideration of the Court of Court of Queen's Bench, who held that the intention was immaterial if the publication was obscene in fact, and reinstated the order of the justices.

The consequence of this hearing was a definition of what was considered illegally obscene at the time: "the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences [taken largely to mean youths], and into whose hands a publication of this sort may fall." But of course the wealthy did not include themselves in this category, because they felt that they would not be corrupted. ^[1]

Hicklin allowed for passages to be judged when taken out of context, wherein if one small portion of a work was deemed obscene, the entire work would be outlawed.

This English law was soon adopted by the United States and was enforced by Anthony Comstock, a special agent of the United States Post Office. In 1873, Comstock proposed that the Hicklin Rule be extended to prohibit “any article or thing designed or intended for the prevention of conception or procuring of abortion.” This became known as the Comstock Law. This law led to several court hearings, the outcome was usually based on the Hicklin definition of obscenity.

Progression of the Hicklin test in the United States

The Hicklin test was used until the 1950s, when it was abandoned for the new test under Roth v. United States. Two major court cases during the 1930s were influential on this final decision. The first case involved Mary Ware Dennet, a birth control activist, and her booklet on sex education. The case against Dennet was thrown out after the agreement that sex education is acceptable when presented in a decent way. The second case involved James Joyce’s book Ulysses, which led to an obscenity case after it was forbidden to pass through the U.S. Customs. It was decided that—as a whole—Joyce’s book was not obscene.

The Hicklin test was superseded in the 1957 case Roth v. United States, which answered the question about First Amendment protection of obscenity. Justice William J. Brennan, Jr. claimed that broadcast content of a sexual nature taken as a whole would appeal to the prurient interest of the average person. This was based on contemporary community standards and also if the material was without redeeming social value would be considered indecent. ^[3]

Sources

This article includes a list of references, related reading or external links, but its sources remain unclear because it lacks inline citations. Please improve this article by introducing more precise citations where appropriate. (April 2009)

• http://www.britannica.com/ebc/article-9056666
• http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/mackey-thomas.htm
• http://www.eroticabibliophile.com/censorship_history.php
• http://www.fepproject.org/factsheets/sexandcensorship.html
• http://www.radford.edu/~wkovarik/class/law/1.12obscenity.html

References