Hicklin test

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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." (i.e. children)

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.

[edit] History

Obscenity was first addressed with the Lord Campbell’s Act in 1857. Lord Campbell’s Act prohibited the publication of obscene literature, while authorizing post offices to remove the publications from the mail and indict the senders. This attack was under continuous scrutiny because people believed that it caused authors to promote a false image of society and that it diminished the values of literature. The one thing that Lord Campbell’s Act did not provide, though, was a clear definition of what was obscene, and therefore could be censored. The Hicklin Rule solved this problem. The Hicklin Rule was named after Benjamin Hicklin, a recorder in London following the Regina v. Hicklin court case in 1868. This case was brought against Henry Scott because he had created an offensive anti-Catholic booklet called “The Confessional Unmasked.” 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 [such as small children], and into whose hands a publication of this sort may fall." 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. He also condoned the use of search warrants in the event of suspected retail or circulation of obscene materials. 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. Although this law led to several court hearings, the outcome was usually based on the Hicklin definition of obscenity.

[edit] Progression of the Hicklin Test in the United States

Main article: Obscenity: United States obscenity law

The Hicklin Rule was utilized up until the 1930s, when it was eventually abandoned for the “work as a whole” test. Two major court cases during the 1930s led to this final decision. The first of these cases 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. Because of this ruling, courts began to focus on the entire work when judging obscenity rather than isolated passages.

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 Brennan claimed that sexual materials which appeal to the prurient interest and are not socially important are not protected under the First Amendment and are, therefore, open to censorship.

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