Happy family

Find a legal form in minutes

Browse US Legal Forms’ largest database of 85k state and industry-specific legal forms.

Book Censorship

Censorship existed in the United States from its beginnings, the existence of the First Amendment notwithstanding. But although there were federal anti-obscenity laws, censorship itself was not mandated by federal or state governments. What codified censorship was the 1873 Comstock Act, which called for the banning of literature deemed sexually arousing, even indirectly. The man for whom the act is named, Anthony Comstock, was the leader of the New York Society for the Suppression of Vice and a special agent for both the U.S. Post Office and the New York state prosecutor’s office. The Comstock Act banned the mailing, importation, and transportation of any printed material (even private letters) that contained lewd or lascivious material. It also banned the transport of any sort of contraceptive drug or device, as well as literature describing contraceptive devices. What this meant was that a book that in any way made mention of any sort of birth control could be considered lewd and subject to confiscation. Violators of the Comstock Act (Comstock himself was deputized and arrested many violators himself) faced steep fines and even time in prison.

Other books that were affected by the Comstock Act included The Decameron (written by Giovanni Boccaccio in the fourteenth century), Tolstoy’s Kreutzer Sonata, Hemingway’s For Whom the Bell Tolls, and D.H. Lawrence’s Lady Chatterley’s Lover.

In Boston, the Watch and Ward Society, which had long championed against what it deemed indecent, organized book bans in the 1920s, which gave the language the phrase “Banned in Boston.” Groups such as the American Civil Liberties Union (ACLU) fought to challenge the censorship laws. These groups were successful on several occasions, winning the right in 1933 for James Joyce’s Ulysses to be imported into the United States and in 1960 when federal courts allowed the full version of Lady Chatterley’s Lover to be published here.

Beginning in the 1950s, a series of U.S. Supreme Court cases helped change the scope of censorship laws in the United States.

Butler v. State of Michigan. The Butler case determined in 1957 that adult reading material did not need to be restricted to protect minors. It struck down a Michigan law that outlawed any printed material with obscene language (which could corrupt children), noting that the material’s existence by itself was not a danger to young readers and the law was too sweeping. Justice Felix Frankfurter wrote that the Michigan law limited the entire adult population to “reading only what is fit for children.”

Roth v. United States. Also decided in 1957, this case upheld a conviction for mailing materials that were deemed to be “in the prurient interest.” Although Roth made clear that obscene material was not subject to First Amendment protection, the court did note that material that has some redeeming social value or importance. (Obscenity, wrote Justice William Brennan, was “utterly” without such value.)

Jacobellis v. Ohio. This case was decided in 1964. It held that “national” standards for obscenity determined “community” standards. A Cleveland Heights, Ohio theater had shown a foreign film with an explicit sex scene. The theater owner was arrested for violating the state obscenity statute, but the Supreme Court held that since the film in question had been screened across the country without incident, it was not obscene. “The Court has explicitly refused to tolerate a result whereby “the constitutional limits of free expression in the Nation would vay within state lines,”‘ wrote Justice William Brennan. “We see even less justification for allowing such limits with town or county lines.” Jacobellis was the case in which Justice Potter Stewart made his famous observation about obscenity: “I know it when I see it.”

Memoirs v. Attorney General of Massachusetts. This case, decided in 1966, reversed a state court’s ruling that the 1749 book Memoirs of a Woman of Pleasure, commonly known as Fanny Hill, was obscene. The reason, explained the court, was that the book, despite its content (much of which could be construed as offensive) geared toward prurient interest, the book was not “utterly” without redeeming social value. To be obscene, the book would have to have prurient appeal, offensiveness, and utter lack of redeeming social value.

Ginzburg v. United States. This case was decided in 1966, and the court upheld the conviction of a publisher who had marketed and mailed three sexually explicit publications. The reason the court reached this decision was that the material, though potentially not patently obscene, had been marketed solely as erotic material and thus could be reasonably construed on that basis to be obscene.

Ginsberg v. State of New York. In this 1968 case, the Supreme Court upheld a statute that a state can create more stringent obscenity standards for minors than for adults. The defendant had sold two adult magazines to a 16-year-old boy, and argued that the anti-obscenity statute violated that minor boy’s right to read under the First Amendment. The court found that there was no violation of the child’s rights because the material in question was obscene for children.

Miller v. California. This landmark 1973 case established a new definition for obscenity, replacing the standard set by Roth. The defendant had been convicted under California’s obscenity law for mailing sexually explicit advertisements to sell adult books and films. An appellate court uphend the conviction, but the Supreme Court vacated the appellate court’s decision and sent it back for reconsideration using the new definition. Chief Justice Warren Burger, writing for the majority, outlined the definition: “The basic guidelines … must be: (a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to a prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Board of Education v. Pico. Decided in 1982 by a 5-4 majority, this case ruled that school boards do not have the absolute right to remove books from school libraries. A school board in Island Trees, New York removed several books from the school library shelves, including The Fixer by Bernard Malamud, Slaughterhouse Five by Kurt Vonnegut, Best Short Stories of Negro Writers (edited by Langston Hughes), A Hero Ain’t Nothin’ But A Sandwich by Alice Childress, and A Reader for Writers (edited by Jerome Archer). The school board, when challenged about its decision, called the books “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” Although it was determined by a separate committee that several of the books should be replaced, but the board refused. A group of students sued the district.

Justice William Brennan wrote that “the special characteristics of the school library make that environment especially appropriate for the recognition of First Amendment rights of students.” While the court noted that school boards do have discretion in what books to acquire for the school, and it could reject any works deemed to be “pervasively vulgar.”

School boards continue to attempt to ban books, with classics such as The Adventures of Huckleberry Finn and Of Mice and Men among the most frequently challenged, according to the American Library Association. In the early years of the twenty-first century, the Harry Potter series of books, which tell the story of a young aspiring wizard and his adventures in wizard school, have become a focal point for many who oppose the focus on wizardry and magic.

Inside Book Censorship