Hicklin rule
The Hicklin rule, established in 1868 by the Court of Queen's Bench in the case Regina v. Hicklin, set a legal standard for determining obscenity that was utilized in Great Britain, Canada, and the United States for many years. The rule arose from a case involving a pamphlet that criticized the Roman Catholic Church, leading to its seizure and a subsequent legal battle over its status as obscene. Chief Justice Alexander Cockburn defined obscenity under the Hicklin rule as any material that could potentially "deprave and corrupt" individuals who might encounter it, particularly focusing on the protection of children.
This broad definition allowed for an expansive interpretation of obscenity, making it relatively easy to pursue prosecutions during its enforcement. Notably, the Hicklin rule neglected adult perspectives and interests, often leading to the censorship of significant literary works, including Ernest Hemingway's "For Whom the Bell Tolls." The rule remained influential until mid-20th century legal decisions began to refine the standards for obscenity, ultimately shifting toward more nuanced criteria that considered the impact of material on the average person. The legacy of the Hicklin rule highlights ongoing debates about censorship, morality, and the balance between protecting society and preserving freedom of expression.
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Hicklin rule
Date: 1868
Issue:Obscenity and pornography
Relevant amendment: First
Significance: The decision of the Court of Queen’s Bench in Regina v. Hicklin established a test for obscenity known as the Hicklin rule that was long used in Great Britain, Canada, and the United States (US)
In 1857, Great Britain’s Parliament passed Lord Campbell’s Act, which gave magistrates the power to seize and destroy obscene material. The Hicklin case of 1868 tested that act. Henry Scott, a fervent Protestant, published a pamphlet, The Confessional Unmasked, that was an exposé of alleged depraved practices within the Roman Catholic Church. Government magistrates seized 252 copies of the pamphlet and ordered their destruction. When Scott appealed, a court recorder named Hicklin revoked the order. When the government appealed Hicklin’s decision, Chief Justice Alexander Cockburn of the Court of Queen’s Bench reinstated the order for the pamphlets’ destruction. In so doing, he defined what was meant by obscenity:
whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.
This definition became known as the “Hicklin rule,” or “Hicklin test.” Though British in origin, it was used in US courts until 1957. Because of the breadth of the Hicklin rule, obscenity prosecutions were easy to achieve in the US for seventy-five years. It swept broadly because it required only a “tendency” to deprave or corrupt. Anyone could come under its scope. Furthermore, the rule extended its scope by merely hypothesizing into whose hands the material might fall. The Hicklin rule expressly stated that it wanted to protect children. Thus, children who might tend to be depraved or corrupted, or into whose hands obscene materials might fall, were the primary beneficiaries of the rule.
Such reasoning was, however, entirely hypothetical. Adult tastes and interests were simply not considered. Therefore, under the Hicklin rule, the adult public could be reduced to reading what was deemed fit only for children, or the most susceptible persons. Furthermore, even if only a part of the material were considered obscene, the whole work could be pronounced obscene and thereby censored. Examples of works banned under this rule during its seventy-five-year tenure in the US include such popular novels as Ernest Hemingway’s For Whom the Bell Tolls (1940) and James Jones’s From Here to Eternity. In the 1957 American cases Butler v. Michigan and Roth v. United States, the US Supreme Court changed the standard to preclude only that material so obscene that it might have a negative influence on the average person.
In 1973, Miller v. California established the standard for obscenity used in US courts based on three considerations. Does the material appeal to prurient interest (excited lurid thoughts)? Does the material depict sexual conduct in a patently offensive way? Does the material lack serious literary, artistic, political, or scientific value? For material to be considered obscene, it must meet all three criteria.
Bibliography
Green, William Crawford. "Hicklin Test - The First Amendment Encyclopedia." Free Speech Center, 1 Jan. 2009, firstamendment.mtsu.edu/article/hicklin-test. Accessed 24 Aug. 2024.
Hudson, David L. "Miller v. California (1973) - The First Amendment Encyclopedia." Free Speech Center, 1 Jan. 2009, firstamendment.mtsu.edu/article/miller-v-california. Accessed 24 Aug. 2024.
"Obscenity Laws in the United States (19th-21st Centuries)." Banned Books, bannedbooks.indiana.edu/items/show/42. Accessed 24 Aug. 2024.