Chapter 5 - Threat Level: Orange

Summary

Obscene speech is always unprotected speech. When states ratified the First Amendment, many already criminalized obscene speech. They saw no conflict between the amendment's speech protection and bans on obscenity and profanity. Obscenity law, as intially defined in R. v. Hicklin, assumed that one bad word could render an entire work obscene. Over time, courts tempered obscenity bans by considering a work as a whole, and whether any questionable language was offset by the work's scientific, artistic, or social importance.We look at Hicklin; the obscenity trials in the UK of Henry Vizetelly for publishing translations of Emile Zola novels; the US Senate debates in 1929–30 on an obscenity clause in a new tariff bill; and the regulation of obscenity in film, and on radio and later, TV. Although the definition of obscene language remains difficult to pin down, courts assume "you'll know it when you see it." In practice, although obscenity remains outside the law, defining what counts as obscene has swept more and more language that was once considered obscene into the category of protected speech.