What is obscenity? The Supreme Court has had difficulty trying to define it. In 1964, Justice Potter Stewart confessed that he did not know how to define obscenity, but he added, "I know it when I see it."1 In 1968, Justice Harlan commented, "The subject of obscenity has produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication."2 Indeed, when the Supreme Court devised the current test for obscenity in 1973, Justice Burger admitted that a majority of the Court had not been able to agree on a definition of obscenity since 1957.3
The United States has been grappling with obscenity laws since 1842, when a tariff act banned "importation of all indecent and obscene" paintings and photographs. During the Civil War, in 1865, Congress passed the first law outlawing the mailing of obscene matter in the North because Union soldiers were reading such scandalous books as Fanny Hill, also known as Memoirs of a Woman of Pleasure, by John Cleland. In 1873, Anthony Comstock, a moral crusader from New York, helped push the first national obscenity bill through Congress by using the slogan of "Morals, not Art or Literature."
Mailing obscene matter remains illegal today. The current statute says, in part, "Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance . . . [is] declared to be nonmailable matter." A person convicted of mailing anything obscene can be fined $5,000 and imprisoned for up to five years for a first offense; maximum penalties for a second offense are doubled.4 The problem, of course, is that the statute simply strings together a group of unclear adjectives -- "obscene, lewd, lascivious, indecent, or vile." Courts have had the task of trying to interpret such unclear language.
A brief history of the evolving interpretation by U.S. courts of what qualifies as obscene must start with an English rule or test for obscenity devised by Lord Chief Justice Cockburn. The Hicklin test, from the 1868 English case of Regina v. Hicklin,5 was whether the tendency of the material is to corrupt minds that are "open to such immoral influences." But a problem with the test was that banning material with a tendency to corrupt minds that are open to immoral influences could mean banning everyone from seeing or reading what might have an affect only on abnormal adults or on children. The U.S. courts added a twist to this rule, making a bad rule worse. The American addition was the "partly obscene" test: If any part of a work was obscene -- if any part had a tendency to corrupt minds that are open to immoral influences -- then the whole work could be considered obscene.
In 1933, a judge in a New York federal district court, Judge Woolsey, departed from the Hicklin test. Customs officials did not want the novel Ulysses by James