The conventional history of obscenity and pornography in America begins about one hundred thirty years ago with the passage of the Comstock Act in 1873, which banned obscene literature from the mail. (1) A resulting climate of sexual repression prevailed until the middle of the twentieth century, when the United States Supreme Court's decision in Roth v. United States, (2) and later in Miller v. California, (3) loosened restrictions on the sale of sexually explicit material to adults. The standard narrative picks up again in the late twentieth century with the efforts of feminist theorists and activists Catharine MacKinnon and Andrea Dworkin to suppress pornography as a violation of women's civil rights. (4) It ends with present-day controversies over the flood of sexually explicit images on the Internet and panic over child pornography. (5)
However, a significant untold history of both sexual representation and obscenity prosecution precedes the usual starting point of this narrative. (6) This early history helps to explain how pornography emerged as a cultural and economic phenomenon in American life. (7) It also offers valuable perspectives on the meaning and function of obscenity law, fundamental issues that continue to bedevil American law and policy. In particular, the legal history offered here illuminates the ways in which obscenity prohibitions often encouraged, rather than suppressed, the growth of an American pornography trade. (8) It also demonstrates the significant role that obscenity law played in shaping commercial and cultural constructions of sexual desire.
Part I of this Article provides a brief summary of the doctrine of obscenity as it arose in English common law and developed in the United States in the first half of the nineteenth century. In essence, nineteenth-century American jurists, following the lead of English treatise writers, routinely asserted that government officials had the authority to suppress any speech or conduct that had a tendency to corrupt public morality, including the authority to punish the sale of "obscene" publications. Relying solely on these elite expressions of law and on the language of state statutes that purported to regulate morality, one might well conclude that state and local governments seamlessly exercised the power to police morality and suppress indecency in nineteenth-century America. (9)
But fully understanding the operation of obscenity law in American culture and society requires looking beyond formal law. (10) Part II therefore examines the ways in which obscenity doctrine was applied "on the ground" in the context of specific criminal prosecutions involving the sale of obscene books in New York City between the early 1840s, when significant numbers of obscenity cases first arose, and the start of the Civil War in 1861. This discussion relies heavily on data compiled from the unpublished District Attorney Indictment Papers for the principal criminal court in New York County at that time, the Court of General Sessions. (11)
New York City provides a natural focal point for this inquiry for several reasons. By the middle of the nineteenth century, it was not only the largest city in the United States; it was also the site of the country's principal financial, manufacturing, and cultural institutions. (12) In addition, in the decades leading up to the Civil War, New York established itself as a communications capital, pushing aside its chief rivals, Boston and Philadelphia, to lead the nation's burgeoning publishing industries. (13) Most importantly for this Article, by the start of the Civil War, New York had emerged as the headquarters for an ambitious, entrepreneurial network of publishers who pioneered the production and marketing of sexual writing in the United States. The city's preeminence in the field of sexually stimulating publications was widely recognized by the early 1860s, when its publishers and dealers earned national notoriety for exploiting the escalating demand for mail-order erotica among Civil War soldiers. …