Throughout history, books have typically been banned for one of three primary reasons: sedition, heresy, and obscenity. The first two reasons are far more common than the third in most societies, but the United States is somewhat unique in that the First Amendment to the Constitution has always protected speech that some consider heretical. Although the U.S. Congress passed laws banning seditious speech in 1798 and 1918, these laws were short-lived, and no major book bannings occurred as a result. However, many books have been legally banned in the U.S. for obscenity, the definition of which has been the subject of great debate in the judicial system for more than a century.
The sale of obscene material was banned in most U.S. states from the early 1800s, but the first national law prohibiting the distribution of such materials was the Comstock Act of 1873. At the time it was enacted, the Comstock Act applied to many kinds of materials, including contraceptive devices, but one of its primary effects was to stop the sale of “obscene, lewd, and/or lascivious” books. The federal Comstock Act applied only to the distribution of prohibited material through the mail, but this was the primary vehicle for the sale of books from publishers to wholesalers to bookstores. Additionally, many states adopted laws modeled on the Comstock Act to ban the sale of such materials within their borders. The Tariff Act of 1930 added another federal mechanism for banning obscene material, giving the U.S. Customs Department the authority to seize and destroy such works upon importation.
The courts have adopted various standards over the years for determining whether published material is obscene. The Hicklin test was used in the late nineteenth and early twentieth centuries. This rule was borrowed from the outcome of the British case, Queen v. Hicklin, which determined that obscenity is defined as the tendency “to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication… may fall.” In the 1930s, the Hicklin test was modified by what is known as the “book as a whole” test, which makes allowances for literary merit and asks whether a work’s overall effect is pornographic in nature.
In 1957, the Supreme Court set the obscenity bar higher, in the decision for Roth v. United States. The Roth test was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” The Roth Opinion also states that obscenity is “utterly without redeeming social importance.” The Roth test was upheld in Miller v. California in 1973, but the Supreme Court Opinion added that the work must depict or describe “in a patently offensive way, sexual conduct,” and must “as a whole, [lack] serious literary, artistic, political, or scientific value.” The Miller test is still used by the U.S. judicial system.
At the center of these court decisions, the merits of some of the greatest and most popular novels have been debated. As literary authors have continued to push the boundaries of what is deemed acceptable, community standards have changed, making the banning of books under the terms of the Comstock Act nearly impossible today. Text by Melissa A. Hubbard, Assistant Professor, Morris Library Special Collections Research Center. Image of the Grove Press edition of Lady Chatterley's Lover provided by the Morris Library Special Collections Research Center.