Comparing Articles in Obscenity in Courts - Essay Example

?Comparative review of two articles This comparative review is about two articles by contemporary William B.Lockhart and Robert C McClure (co-authors) Rev John Courtney Murray written in mid 1950s. The titles of the articles are Obscenity in Courts and Censorship and Literature which are closely related in that both deal with obscenity. Obscenity in courts Obscenity in courts authored by Lockhart and McClure in 1955 is a treatise on the trajectory of treatment of obscenity problem by the judiciary. Starting from Hicklin test of an English decision applied in 1800s, the American courts formulated their own standard which also changed as times changed. Censorship and literature Rev Murray John Courtney 1904-1967 was a theologian with a doctorate in sacred theology. He taught Catholic trinitarian theology and was editor of the Jesuit Journal Theological Studies in Queens, New York until his death 1 John Courtney Murray posits that censorship is a compromise between freedom and restraint. Obscenity in the courts: Written one year before the article “Censorship and literature”,2 the authors Lockhart and McClure 3 narrate how obscenity was being defined by the courts at the time when there was a revival of Puritanism in the United States especially after the Civil War and the World War 1.. After these wars, there was sudden surge of obscene literature in the country that there was public outcry for a newer legislation to contain obscenity in all its forms. The legislation of the time was ineffective without a workable definition of the term obscenity. There were few reported decisions of pre-civil war period on obscene literature with some impact on the people who read such literature. The contemporaneous Hawthorne’s The Scarlet Letter came to be detested as an outright immoral book which degraded literature and encouraged promiscuity. As early as in 1868, a workable definition for obscene was provided by Lord Chief Justice Cockburn, an English jurist that came to be known as Hicklin test following his decision in Regina v Hicklin 4 which said that a material was obscene if the impugned material depraved and corrupted vulnerable individuals coming across that material. Though Hicklin was soon being followed by American courts, this Victorian moral standard was felt out of time by American federal District Judge Learned Hand who suggested that obscenity must be regulated by the Government in accordance with community standard that changed with times. Following Hand’s ruling, American courts started ignoring Hicklin test and it was finally put to rest by a 1933 Ulysses decision5 in which the judges Hand and Agustus N H of the U.S. Supreme Court ruled that a book was considered obscene by its dominant effect. And the test should be by verifying whether the passages alone depraved the mind of the individuals who has access to that book. The authors of the present article examine the treatment of obscenity under different contexts of “ effects on individual readers” , “effects on community moral standards”, “offensiveness”, and “effect on probable audience” and author’s purpose. The authors question whether censorship’s purpose is only to prevent corrupting and depraving of the minds of the individuals or it is also prevent their behavior influenced by such obscene material. In the absence of judicial answer for this, authors state that there has been no attempt to show that individuals reading obscene books started behaving differently that is inconsistent with the extant moral standards. They insist that court have never gone beyond determining that an allegedly obscene book only affected the readers’ thoughts and desires without ever being concerned about the individuals’ behavior or actions after reading an impugned book. Courts’ decisions on obscenity have not taken care to find out what kind of thoughts that individuals are affected with. Courts have not spelt out whether the obscene material induces thoughts on sexual intercourse and whether they are within or outside wedlock. Or whether they only lead to perverted sexual thoughts. Courts have only made statements such as “stir sexual impulses or lead to sexually impure thoughts”. Most of the books alleged as obscene materials only deal with normal sexual relations without suggesting sexual perversions. The authors argue that it is not clear whether a book that is not suggesting sexual perversions and suggesting intercourse within marriage are also obscene materials. It is highly doubtful if evil sexual thoughts would themselves are serious enough to interfere with freedom of expression. It is also suggested that such sexual thoughts may be in public interest as a form of sex education. It may be unreligious in that sexual thoughts would stimulate carnal desires and divert mind from religious thoughts and also from productive work. But prevention of such outcomes is not the constitutional obligation of governments. Notwithstanding these arguments, authors admit that perverted sexual thoughts induced by obscene materials can lead to immoral behavior of the reader of the obscene material. In this respect Hicklin test may be appropriate but courts are not being explicit on what they mean by depraving and corrupting the mind of the reader. In the absence of courts’ explicit opinions, it can be only assumed that courts consider that obscene literature do stimulate sexual perversion and normal sexual intercourse outside marriage. It is contended that votaries of censorship have never proved what they speak of. Much talk about the censorship without proof is actually the position. As for effects on effects on community’s moral standards, there have been no court opinions as to how such obscene literature would change society’s moral standards as claimed by the censorship advocates although in the decision People v Dial Press 6 , court was convinced that New York Law effectively prevented a book that would undermine moral law which would result in subversion decency and morality. Offensiveness is not a reason attributable to obscenity of a literature and hence vulgarity and offensiveness of a literature does not render it to be obscene. Yet some courts continued to assert or deny that vulgar and offensive words constituted obscenity. Thus, in United States v Dennett, sex instruction in decent language was not held obscene. On the other hand in Besig v United States of 19537, Henry Millers’ books Tropic of Cancer and Tropic of Capricorn were held to be obscene by applying the traditional Hicklin test. The same kind of language in Henry Miller’s books used in James Joyce’s Ulysses and James T Farrell’s A World I Never Made were not found to be obscene. The effect on the audience or the moral standards of the community is the norm that guided courts to hold a literature or any other material obscene or otherwise. It has been opined by the courts that books must be viewed in their entirety and not their isolated passages alone as otherwise classics like Shakespeare and much of the world’s leading literature would have to be held obscene for their isolated pages. In judging a book as a whole, if the objectionable parts are relevant to the theme of the books, courts allow them as not obscene. In determining the relevance, courts have followed differently. While Massachusetts Supreme court determined relevancy by the necessity of the passages, New York courts looked into author’s sincerity of purpose. Many judges tend to think that obscenity is self-evident and do not need experts’ testimony, though in some cases they have allowed experts to testify but have not Authors’ purpose is the last of the factors for determination. Courts have held that author’s purpose may be one of the several factors to determine obscenity of a book and hence it cannot be a conclusive evidence for determination of obscenity. The authors conclude that it would be better if courts continue to adjudicate on obscenity rather than delegating the decision making to an official board censors for reasons of such censors’ past performance that did not inspire confidence. Apart from criminal angle with which a literature is to be viewed for its obscenity, authors suggest that there should be a restatement of factors to establish a declaratory action. Censorship and Literature Murray’s later (1956) article introduced at the outset will be compared how it responds to the expectations of the authors of obscenity in courts above and how relevant Murray’s article is to the above article. It is coming from a theologian from the Catholic school of thought but considered to be a reformist without allowing the Church to dictate. Though not a legal expert, he explains why a censorship is necessary. Thus, his article is directly relevant to the above article that has exhaustively dealt with obscenity. He advocates censorship to regulate obscenity in literature and other media. He consciously avoids discussion of court cases unlike in above article so as to make a conclusive speech. While the above article of Lockhart and McClure concludes that courts should adjudicate on obscenity instead of a separate board censors, Murray talks of State’s police power to ensure public morals, public health, public safety, public order and general conduct of society leave alone the argument of freedom of expression for the writers or artists. He argues that when State is power transferred by the people to the body politic, it is a self-imposed power on themselves and hence power of censorship is a self-imposed one by the society of people who allow themselves to be dictated by the power so conferred. Thus, the society imposes restraints on personal freedoms among others. The author emphasizes that censorship is a matter of right on the part of the State. He calls it an emergency power that a state can use to protect children. There is harmony between the above two set of authors in that the latter takes up the issue where the former has left. Murray argues that imposition of restraint must be compensated by an increase in freedom. In other words, where one door closes, another one opens so that society is not persecuted. Thus, traffic regulations are a constraint on movement on the streets but they afford freedom to move in a regulated manner. While taxes are a constraint on the freedom on how people use their money, it gives freedom of living in security. Thus, society or civilization is a world of restraints only to enable people to live without hunger, fear of attack and so on. The author argues that constraints on freedom have several consequences out of which two require consideration. First, when constraint on the freedom in one aspect in order to have freedom in another aspect, there is risk of losing freedom in yet another aspect with more dangerous consequences to the community. Thus, when the state imposes restraint on personal attacks among the contestants in a political election about their integrity, it gives freedom of peace but affects the electoral process, an example of third aspect or third domain as Murray calls. Secondly, it is not possible to foresee indirect effects of restraints with the result a social restraint with good intentions may end up causing more harm than good. Thus, the ban on alcohol and drunkenness as social vices actually led to other undesirable consequences such as illicit liquor, black economy, deaths due to poisonous illicit liquor. At this juncture, it may be relevant to recall what were observed in respect of obscenity. Though obscenity is sought to be banned with all the good intentions, except for the benefit of another freedom as the logic goes, the other undesirable consequences may go unnoticed or become uncontrollable. In direct answer to the ban, control or restraint of obscenity of the article of Lockhart and McClure, Murray’s argument in this respect is worth considering. He is calling attention to the problems arising out of public enforcement of standards sexual morality. He cites the comment from an undisputed authority Jacques Leclercq of Catholic University of Louvain as “no government authority has ever succeeded in finding a balanced policy of combating unhealthy sexual propaganda without inuring legitimate freedom or provoking equally grave or worse disorders”.8 Obscenity is part of sexual immorality. Lockhart and McClure agree that debauchery of sexual faculty is immoral and incitement to such debauchery should be legally forbidden. But they warn against total ban on incitement if one could read the St Augustine’s treatise De ordine. The authors also point out the laxness of Catholic governments drawing inspiration from strictness of Catholic doctrine is shocking to libertarian and the Puritan. Thus, in the year 1517, there were more prostitutes in Rome than the number of married women. In 1592, in Rome under a very strict Pope Sixtus X, there were 9,000 prostitutes among a population of 70,000. This state of affairs was prevailing in the headquarters of Catholics controlling catholic community in the rest of the world teaching about immorality of obscenity and sexual immoralities. This is a direct statement to the authors Lockhart and McClure about the helplessness in controlling or containing the freedom in indulging in obscenity which they want to be controlled by the judiciary and by a private censor board. In this respect, Murray also agrees that censorship must be a juridical process but it must be in the hands of governmental or non governmental body .Murray concludes that the problem is not literary censorship but literary creation as is true in the case of Church which prays for her men to be able to write books that contributes to the literary creation. Conclusion The strength of the two articles is that they are both relevant even today with the obscenity having touched abysmally low standards. Censorship standards have also changed with the times to compromise with the tacitly relaxed norms for obscenity. Obscenity is now part and parcel of people’s lives today and it perhaps continues to thrive even today because it does not result in a perverted behavior of the audience any longer because the present generation of audience is well informed and because obscenity within their easy reach. Though standards continue to slide, obscenity has lost its importance because its supply exceeds demand in the present time with the advent of new technologies and globalization. A parallel may be drawn with the status of one-controlled alcohol consumption today, which issue Murray has dealt with in his article. It proves the point, the more anything is controlled, greater is its side effects. And it also conforms to Murray’s theory that censorship is justified only when there is corresponding freedom/welfare in different form. References Besig v United States 208 F.2d 142. Hooper Leon (1999) Murray Biography from American National Biography, New York, Oxford University Press. Lockhart B William and McLure C Robert, (1955) Obscenity in Courts, Law and Contemporary Problems, 20 (4) 587-607. Murray Courtney John (1956) Censorship and Literature, The Furrow, 7 (11) 679-691 People v Dial Press 182, Misc 416, 48 N.Y.S. 2d 480 (Mag.Ct.1944). Regina vs Hicklin L.R. 3 QB 360 (1868) Sherin B John (1957) Censorship in Contemporary Society, Catholic Law 3 (292) United States v One Book called Ulysses Read More