Libido: Naked Brunch: Un-Banning Books
Preserving America’s Erotic Heritage

How the courts of the United States came to extend
First Amendment guarantees to include pornography.

Part 2
From Hicklin to Margaret Sanger

By Jack Hafferkamp

American law on the subject of obscenity and pornography came straight from British law. English law was based on what came to be known as the "Hicklin Act."

In 1857, the Lord Chief Justice of England introduced into the House of Lords the Obscene Publications Act, a bill he melodramatically claimed would eliminate the "sale of poison more deadly than prussic acid, strychnine or arsenic." This was prurient material that would corrupt the morals of innocent children, women and the "weak of mind." This act, he assured members, would not harm literature.

The case testing the act was the prosecution in the 1860s of a militant Protestant. His crime was publishing an anti-Catholic pamphlet that denounced the "depravity" of the confessional booth. Its full title was "The Confessional Unmasked: Shewing the Depravity of the Romanish Priesthood, the Iniquity of the Confessional and the Questions Put to Females in Confession."

Anti-Catholic tracts such as "The Confessional Unmasked" were common in 19th Century England and the United States. In these images we see 1) a priest being titillated by a young woman’s confession and 2) the supposed result: an aroused priest forcing himself on a woman.

This particular fundamentalist was outraged by the things priests supposedly asked young women in the confessional, which he enumerated in his tract. The pamphlets were ordered seized by Benjamin Hicklin, a Wolverhampton magistrate, and the case was decided in 1868. Since then the Obscene Publications Act has popularly been known as the Hicklin Act.

From Hicklin, we inherited the idea that the test for obscenity should reside in any material’s "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." Porn’s supposed ability to corrupt the naive, that is children and/or women and/or the weak of mind, is a continuing theme, and indeed is today at the heart of the battle over sex in the internet, on TV, in movies, books and magazines.

Hicklin provided that a search warrant could be issued on sworn information -- by anyone -- that obscene publications were kept for sale or distribution on any premises, and that the owner of these materials had to show cause why they should not be destroyed. Under Hicklin, then, the burden of proof was on the owner of "obscene material" not the person making the charge. This approach carried over to the United States.

While Hicklin’s supporters may have meant well, the act itself left the determination of obscenity up to the people with the narrowest possible interpretation. The result was that under HIcklin all readers were reduced to what could safely be read by children, women and the "mentally weak." Hicklin not only hobbled literature, it prevented the dissemination of useful information, specifically scientific work and information on birth control and contraception.

Havelock Ellis in 1883

So, for example, the findings of serious researchers such as the pioneering sexologist Havelock Ellis were banned. He was prosecuted in England in 1898 for publishing his study on homosexuality called "Sexual Inversions," the first part of his classic Psychology of Sex.

Yet instead of stamping out prurient books, Hicklin did just the opposite. It fed the fire for a thriving pornography market in Victorian England and to a lesser extent in he United States. Cheap novels, many of them printed in France and the Low Countries for export to English and American markets, flourished. In London, there also were a number of underground periodicals such as The Pearl, which was reprinted to wonder and acclaim by Grove Press nearly a century later.

In the United States, the towering figure of Victorian censorship was Anthony Comstock, who lived from 1844 - 1915. In granting Comstock the power to censor anything he didn’t care for, the United States Congress stunted the American discussion of sexuality and reproduction for nearly a hundred years.

Let me tell you a little about Anthony Comstock. Much like J. Edgar Hoover at the FBI, Comstock in his heyday was able to do pretty much as he pleased. After serving in the Civil War, where Fanny Hill was particularly popular among the troops, former grocery clerk Comstock took it upon himself to be the guardian of public morals. His hysterical message found influential backers, including such Victorian magnates as banker J. Pierpont Morgan and Samuel Colgate. Even the New York Times praised Comstock for "protecting society from a detestable and dangerous group of enemies."

Anthony Comstock: America’s Victorian Censor

In 1868 Comstock wrote New York State’s law forbidding "immoral" works, and then he took on Washington, D.C. In 1873 he convinced the U.S. Congress to pass the Comstock Act. It not only established stranglingly strict national postal regulations, it gave Comstock the power to use them against any materials he personally considered obscene.

In the first six months of national operation, Comstock seized what he reckoned to be 194,000 obscene pictures and photographs, 134,000 pounds of books, 14,200 stereopticon plates, 60,300 rubber articles, 5,500 sets of playing cards and 31,500 boxes of "aphrodisiacs."

One particular subject Comstock thought obscene was contraception. In fact the first American work on birth control to run afoul of the Comstock law was a pamphlet for married couples by Edward Bliss Foote, who claimed to be the inventor of the rubber diaphragm. Comstock saw to it that in 1876 Foote was fined $3,000 for publishing his pamphlet. The result was that birth-control information went underground.

Also in Comstock’s very busy decade of the 1870s, he organized the New York Society for the Suppression of Vice. He remained its secretary until his death 42 years later. This organization inspired Boston’s Watch and Ward Society and similar organizations in most of America’s larger cities. These groups, usually religious and commercial people with strong ties to conservative political leaders, felt quite comfortable dictating what their neighbors could read, and they were remarkably successful. In Chicago, where I’m from, our censors worked their magic until the 1960s.

Comstock and his supporters did have their critics. George Bernard Shaw, for instance, coined a pejorative term, "comstockery," for self-righteous censors. But Comstock was little troubled by it. During the course of his long career, Comstock claims to have convicted of obscenity "enough persons to fill a passenger train of 61 coaches -- 60 coaches containing 60 passengers and the 61st not quite full." That's over 3,600 people.

Today we still feel echoes of Comstock in columnists like George Will, publicity seekers such as Donna Rice Hughes and in groups such as the Christian Coalition, the American Family Association, Citizens for Community Values and others that would like to control, in the name of decency, what people can and cannot read and see.

In the face of great social pressure of the Victorian era, one person standing for apart from the fanatics, hucksters and cynical politicians was Margaret Sanger, who lived from 1883 to 1966. Her experience as a public health nurse in New York’s tenements in the early 20th century and her study with sexologist Havelock Ellis in London convinced her that family limitation was a necessary step in social progress, especially where poverty was a factor.

Margaret Sanger in 1914

Sanger probably coined the term "birth control" in 1914, and in the same year she began publishing in a magazine called The Woman Rebel. Its goal was to get working women to think for themselves. In 1915, Sanger was indicted under the Comstock Act for sending birth control info through the mails. In 1916 she was arrested for conducting America’s first birth-control clinic in Brooklyn.

Before her trial Sanger fled to Europe. But her husband, William Sanger, was arrested after he was tricked into giving a copy of her pamphlet, titled "Family Limitation," to a Comstock agent. Partly as a result of this situation, women formed the National Birth Control League in 1915 to demand changes in the law.

Sanger returned to America vowing to keep speaking up, and the government -- partly because of the death of Comstock in 1915 and partly because of a new wave of pressure on Sanger’s behalf, refused to prosecute . The result was that birth control information became more widely disseminated. However, it was not until 1965 that the U.S. Supreme Court removed the last obstacles in the case of Griswald v. Connecticut that birth control information could be given out freely in all 50 states.

Copyright 1996
All rights reserved

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Part 1: Introduction
Part 2: From Benjamin Hicklin to Margaret Sanger
Part 3: The Little Review and James Joyce's Ulysses
Part 4: Samuel Roth to Henry Miller
Part 5: The "Brennan Doctrine"