Wednesday, February 8, 2023
Stern on Obscenity
Simon Stern (University of Toronto - Faculty of Law) has posted Defining Obscenity before Hicklin: Corrupting Texts in the Seventeenth and Eighteenth Centuries (Forthcoming in in Sylvia Sasse and Matthias Meindl, eds., Literature on Trial) on SSRN. Here is the abstract:
The “young person” has often served as one of the primary objects of solicitude for the regulation of obscenity, and while this figure was invoked often during the eighteenth and nineteenth centuries, it did not provide the only rationale; regulators were also concerned more broadly with public morals. This essay considers these rationales in English legal history, starting with late seventeenth century, which marks the earliest instances in which obscenity was expressly the basis for prosecution. The discussion shows how criminal prohibitions against obscenity were rejected in Read (1707) and resurrected in Curll (1727), and discusses the intermittent prosecution of obscene works in the later eighteenth century. The discussion also shows that the intent of the author or publisher had never provided a defense, even in the earliest cases. Although Hicklin (1868) is often characterized as the decision that eliminated intent from the analysis of obscenity, that decision merely reaffirmed what had always been the law.