History of Obscenity & Literary Censorship

Show Notes

Emma uses her lawyer powers to teach Chels and Beth about the history of obscenity law in the United States. The impetus for this episode came about because sometimes well-meaning people misstate these laws in contexts that aren’t relevant or link obscenity standards to current book bans, when those are coming from other sources, despite borrowing rhetoric from the 19th century reactionaries who established obscenity laws. Emma shows us how "but what about the children" has been there from the very beginning. How people in the past have talked about sex in books is Very Familiar unfortunately. (Even in current bookish spaces!) And, most importantly, how often suppressing sex in books is really hiding political motivations.

Books Mentioned

Fanny Hill, or Memoirs of a Woman of Pleasure by John Cleland

The Decameron by Bocaccio

Letter of an Italian Nun to an English Gentleman

Lady Chatterley's Lover by D.H. Lawrence

The Arabian Nights translated by Richard Burton

Leaves of Grass by Walt Whitman

Three Weeks by Elinor Glyn

Genderqueer, a Memoir by Maia Kobabe

Bibliography

U.S. Const. amend. I

4 Bl. Com. 151, 152.

Pennsylvania v. Sharpless, 2 Serg. & Rawle. 91, 92, 94 (Pa. 1815)

Regina v. Hicklin, L.R. 2 Q.B. 360 (1868)

United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705 (2d Cir. 1934)

Roth v. US, 354 U.S. 476 (1957)

Jacobellis v. Ohio, 378 US 184 (1964)

Memoirs v. Massachusetts, 383 U.S. 413 (1966)

Grove Press v. Gerstein, 378 U.S. 577 (1964)

Miller v. California, 413 U.S. 15 (1973)

5 A.L.R.3d 1158, Modern concept of obscenity

Felice Flanery Lewis, Literature, Obscenity and the Law, 1976

Donald Alexander Downs, The New Politics of Pornography, 1989

Ken Wachsberger, Banned Books: Literature Suppressed on Sexual Grounds, 1998

Marjorie Heins, Not in Front of the Children, 2001

Barney Rosset, The Publishing Gamble that Changed America, LitHub, 2016

Michael Lee, Modifying the Miller Test to Supplement Board of Education v. Pico: A Novel Approach for Resolving Censorship Cases in School Libraries, 49 S. Ill. U. L.J. 307, 308 (2025)

Resources for Challenges Book Bans in Your Community

ALA Libguide Researching Banned or Challenged Books

Resource Links from AASL (American Association for School Librarians)

Unite Against Book Bans Toolkit

National Coalition Against Censorship School Book Challenge Resource Center

Transcript

Emma

Welcome to Reformed Rakes, the podcast that will face God and walk backwards into hell in order to punch Anthony Comstock in the face. I'm Emma, a law librarian writing about justice and romance at the Substack Restorative Romance.

Beth

My name is Beth and I write at the Substack Ministrations.

Chels

And I'm Chels. I'm the writer of the romance newsletter the Loose Cravat.

Emma

And today I'm going to talk about the history of censorship of literary works in the United States through the theory of obscenity. For a long period, Court's deeming works as obscene was how sexually explicit works were were censored, though that has changed in the last 40 years. I think the history of obscenity law is interesting and informs how we talk about sexually explicit material, but that is not the legal theory that is the mechanism for much censorship of literary works today. I think lots of people, including romance readers, are rightly concerned with increases of censorship actions in the United States at this moment, particularly around book banning libraries. But the history of censorship and how it intersects with the First Amendment can be confusing and often see it misrepresented by well meaning individuals. So I'm going to take Beth and Chels from the late 18th century to now, specifically through the case law that is creating a body of precedent about literary works which are often treated as with an asterisk as separate from pornography. The contradictory and confusing feature of case law I think is by design. I see the jurisprudence of obscenity brought up a lot in the context of book banning resistance.

Sometimes I see the law misstated where people will characterize the law as more definitive than it is. What I would say that obscenity is a famously opaque area of First Amendment law. Secondly, in the context of book banning, the First Amendment case law relating to obscenity has less to do with it than one might think. The uptick of book banning efforts since 2021 are operating oftentimes outside this constitutional jurisprudence. Effectively de facto censorship and the relevant case law comes from a different line of cases with bans happening to books that do not reach the legal threshold of obscenity. This episode will mostly be about the legal history of obscenity rather than current efforts related to book banning. But we'll link research efforts to resist increasing censorship. I think looking at the motivations for censorship and how reactionaries talked about books that dealt with sex will feel familiar to people who are on social media in bookish spaces. I see a lot of the points from the 1890s repeated over and over again, under the same guise of anxiety about children hiding political motivations for suppression, even from people who purport liberal politics. I think I should also say that I'm attempting to be descriptive rather than prescriptive, explaining what the law is rather than what I think it should be.

But I think the legal context is useful and hopefully interesting, and it has a nice intersection with other each history of romance novels samples.

Beth

So normally we use Emma's librarian powers. I feel like Emma probably is just like rolling her eyes whenever she gets a text from me. I'm like, Emma, I can't find this article. It's a. Here's the DOI number. Can you please pull it up? But Emma is also a lawyer. If you can't tell me in the intro.

Emma

I think I've mentioned it before. I definitely. I bring up law every episode.

Chels

He says, you're a law librarian in the law library.

Emma

Yes, I'm a law librarian. So law librarian by default. It does mean I'm a lawyer, too. I don't just work at a law school.

Beth

Yes. Can you give us the origin story for this episode, Emma? Like, why. Why did you want to do it?

Emma

Yeah. So before we jump into the legal background, I will talk about, like, what I have seen. And then also, maybe you both have also seen this. Cause I think we're in similar spaces online and I know we complain to each other about it.

Beth

Yes.

Emma

Consistently. I see when people sort of make infographics on Instagram or even in just sort of talking on Twitter or in any sort of bookish spaces. I've seen it in multiple sort of social media spaces. And about book banning, people will bring up the obscenity standard from the Supreme Court as context for book banning. There's a standard from the 70s that is what we're going to be talking about today. They will bring it up. And there's sort of two logical fallacies that I see with this. Either they will misstate the standard for obscenity and how it relates to sexually explicit material. They will conflate pornography and obscenity, which I think are two different categories. Obscenity is a legal category, while pornography is a. A social category, a definition that we just have like a layperson's definition for. And those definitions are. Are very personal. We'll talk about this.

That pornography does not have a legal definition and does not have a. There's no. There's no test for whether something is pornography or not.

Chels

Pornography can be so personal sometimes.

Emma

Right. And I think people often approach pornography with the idea that like, their definition of pornography is the same as the person that they're speaking to. And it's like, I think if you pay any attention to this discourse, you'll see that pornography. People are not often talking about the same thing when they're talking about pornography. And then with obscenity, which does have a legal definition, it is. There is a specific definition for it, but again, the definition is purposely written to be kind of opaque. So I see that conflation of it. But then I also see people talking about obscenity as if it's the reason things are being banned right now. We've had an uptick of book banning since 2021. It's been a concerted conservative effort through lobbying groups like Moms for Liberty that have. They're very intentionally. In their playbook of, like, how they do book banning. We know what their playbook is. They. They do it over and over again in lots of different school districts. Obscenity may be a word that they're using, but it's not a legal standard that they're using. So bringing up the Miller test as a way to, like, gotcha.

How book banning happens is kind of legally irrelevant, at least as far as, like, the playbook stands in 2021. So I wanted to talk about the history of obscenity because I think the discourse from, like, the founding of the country with the Constitution to now, as far as obscenity goes, we can see, like, mirrors of how we talk about obscene materials in the past and sort of see that, like, a lot of the anxieties that we have are not new and that those anxieties are being. They're serving conservative impulses to express speech, but also that that playbook is kind of outdated now. So when you bring up the. The Miller test, it's. It's not. It's not. It's not what they're doing right now. And so it feels kind of like a liberal gotcha. Like. Like, oh, like on a technicality. This is. This shouldn't be banned. Well, it's like. Well, they're actually. They are banning it and through a different legal mechanism. So I try to do an overview.

Beth

Of that law because we kind of talked about this in the past, and I think, like a layman, like me, you look at it and law feels like the same. Like, it's all just one giant amorphous blob in my brain. But as you've explained it, it's like a school board is going to be different from the Supreme Court. Me getting it banned in like, getting a book banned in my local elementary school. It's not like it's banned across the country. Does that make sense? Just like the standards people are applying. It's not the same in every—

Emma

Yeah, yeah. And the ruling case. And so this is like the silos of case law and common law is that the Miller test doesn't apply to the cases below it if there are cases below it and their situations below it. And Miller just doesn't come up in the silo of book banning cases. There's a different leading case for it. And basically obscenity is a very, very extreme. Nowadays is a very extreme definition. Like things are not legally obscene very much anymore. And things that are literary works almost never, like very, very rarely. And those literary works are. They're not books that we're thinking of as book banning. It's more like very extreme. Like online publications about sort of abhorrent behavior. And even those federal prosecutions, I think I found evidence of two of them since 2000. So that obscene category is very. Is very far afield. And so. But in book banning they don't need to argue that something is obscene in order to get it banned. And so it's like you're arguing sort of on the fringe. When the people who are banning books are not on the fringe, they're actually in a much more neutral area and they're still succeeding in getting books banned.

And so you're kind of fighting the wrong battle if you're talking about obscenity.

Chels

And why do you think this is coming up so much in romance spaces? Is this because of the like 1 million year old is romance porn Conversation? Conversation. Is that why we're so.

Emma

I think, I think we're all in agreement on this, that I think romance is super interested in distinguishing itself from porn in a way that is harmful both to porn and romance. And it's just, it's like uninteresting to me. I don't think it is a useful conversation. But I think they look at the obscenity standard and they think, well, that's the distinction between porn and romance. Porn is potentially obscene and romance is never obscene. And they're right that like romance books. And when we see this, when we talk about the Miller test, I mean,

I don't want to speak for the Supreme Court of the United States. It would, it would be, it would be surprising to me if the Supreme Court ever held that a romance novel was obscene under Miller based on 40 years of precedent. And how they talk about literary works. That's not the standard that we're fighting for. Book banning of literature. But also it's not. They want to. I feel like romance is really invested sometimes in having a firewall between what is porn and what is romance. But. And the obscenity standard could be a useful firewall for that, if that was their goal.

But I think when they do that, they miss the fact that, like, because the. The book banning efforts are happening further to the center of, like, the extremes that they. The obscenity firewall is not helping you anymore. Like porn and romance. And romance, especially queer stories, stories. People of color tend to be more subject to book banning because it's happening in the center. The firewall is not helping you. So you might as well, like, align. You might as well align with all sexually explicit material and become like a free speech. Free speech absolutist. If this is what you care about, which is what I think you should care about. Yeah, they're fighting a battle. They're punching the air, basically, like, nobody is over on the obscenity standard, if that makes sense.

Beth

It makes a lot of sense.

Emma

Okay.

Beth

Also, you've been talking about the Miller Standard. Can you just give, like, a when sentence what that is?

Emma

Yes, the Miller Standard. We're going to go through, like, how did we get to the Miller Standard? But the Miller Standard is the current rule for obscenity. And let me go to the elements of that so we can talk about. And this is what I see cited in. When people are talking about, like, obscenity, this is the test that they give. There are three elements of the Miller Standard. It's whether the average person applying contemporary community standards. So this is based on, like, a jury trial that you have a jury come in. They're supposed to be reflective of the contemporary community standards in whatever trial is happening. So whether that average person would find that the work taken as a whole appeals to the prurient interest, whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work taken as a whole, lacks serious artistic, political and scientific value. So the idea is that as to appeal to a prurient interest, which means, like, it turns someone on, is sort of the layman's way of saying that patently offensive. I've heard this be described as, like, grosses you out.

So it has to turn you on. And gross you out is sort of the two standards. And then it also has to not have serious literary, artistic, political and Scientific value. And that's the gotcha that a lot of people point to is they're like, books have serious literary, artistic value. And it's like, yes, actually, the Supreme Court is in agreement with you. And that's why books are not held obscene and haven't really been for 40 years. So that's the Miller test. We get there in 1973. That's when. And so from 1789, when the First Amendment is a part of the Constitution, through 1973, we're getting towards the Miller test. And there are different cases that sort of go. That develop into the Miller test. And the different parts come in different parts of constitutional case law.

Beth

So the Miller test is the one that you see applied. And that's 1973. That's when the standard was created. And now we're going to jump back in time.

Emma

Right.

Beth

It kind of go through the history of obscenity law.

Emma

Yes.

Beth

Okay.

Emma

So, yes, we're going to start with the Constitution and common law. And then this will just be like a primer for constitutional and law and how it. How it applies to. How it applies to books. And hopefully that will be interesting and illuminative as far as, like, how you can see these cases. I think illuminative in the fact that it's confusing. And I think this is something that I think people get frustrated with. They think that there's some sort of knowledge that they don't have, and that's why it's confusing. And it's confusing on purpose. And we'll talk about, like, why it's confusing on purpose. I'm gonna start with Beth having to read the first. The text of the First Amendment. So we just know what we're dealing with. You probably know what the First Amendment is, but I'll have Beth read the whole thing also.

Beth

I know it's like, perfectly obvious to everyone right now, but we are all American. This is like an American...

Emma

Yes, yes. A lot of the books that we're talking about were also banned in England. And I didn't look at the English case law. The English case law will come up sometimes because through the 19th century, America is looking to England for case law. And I'll talk about that. But, yes, this is American specific book banning.

Beth

Okay. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.

Emma

Okay. So the part that we care about for freedom of speech is abridging the freedom of speech or of the press. First off, the press, we can think about any book printing. I think we often think about the media as the press or the news media as the press. But in the context of the First Amendment, we also are talking about publishing for anything. But I think there's this impulse a lot of times with constitutional provisions to read them really literally. And I'm thinking of the well regulated militia part of the Second Amendment where people are like, oh, it says well regulated militia in the Second Amendment. All of the second Amendment case law that we have is moot because of that. And I'm on the side of whether we should have the Second Amendment should be less robust and I think we should have more gun control. But that's not how constitutional law reading works. So again, I'm being descriptive rather than prescriptive. So the Second Amendment obviously is outside the scope of today's episode. But I think that's one that people might be more familiar with of like, oh, there's text in the amendment that is like they are seeing it not being used in the case law.

And so in the broad strokes of history and law, you just have to accept this as far as how constitutional law works, that you can literally read something and that is not actually what it means in the case of constitutional law. So we have to look outside the history of that phrase, or we have to look outside the literal reading of that phrase and look to the history of it. So at common law, so when the Constitution was written, the freedom of speech and press was understood not to be free from consequence of publishing the speech, but free from prior restraints. So what that means is that you could write anything. What you couldn't do was the government couldn't say, like, you can't publish that. You can't, like, we're going to take away your printing press, we're going to smash the plates. It's like you can write it and then once it's out there, we will assess it and then we will decide if you need to be punished. So freedom of speech at the time of the drafting of the Constitution has never meant like, it was never a starting place of like you can write anything.

So just a little bit of context for common law, because I'm going to say it like throughout the episode. And the common law is just the body of case law from courts. So judge made law. And so this is rules and definitions that are decided by precedent. We often think of in the US of judges as interpreting the law from legislature. But we're a common law country, which is a thing that we get from England. So historically, for hundreds of years, things could originate in courts. Classic example from law school is the common law burglary, which is the act of breaking and entering into another person's dwelling at night with the intent to commit a felony therein. So that was a crime that was developed by judges. And so that at night element is often funny for people. They're like, burglary can only happen at night. Yes. At common law, the judges decided that burglary could only happen at night. So these elements are coming from judges, and that's judge made law. So at common law, I just mean in the body of case law in 1789, when the First Amendment is written, that's what freedom of speech means, that it's without prior restraints.

And the goal of this is we predict how judges treat the case by looking at the common law. We have a source for common law that explains the prior restraints. And I'm going to have Chels read the Blackstone's definition of this, and then we'll sort of, I think, understand a little bit more about what the phrase means in the amendment.

Chels

The liberty of the press is indeed essential to the nature of a free state. But this consists in laying no previous restraints upon publications, and not in freedom from censure or criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public. To forbid this is to destroy the freedom of the press. But if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.

Emma

Okay, again, we're focused on prior restraints. And I think it's important to keep in mind the value that we're talking about. So the government could not preemptively prevent the publication of something, but you could be punished for that publication if it was a crime like libel or sedition. These are the two main ones that we care about, Especially in the colonial period. Like, the sedition laws are a huge deal under John Adams. People may be familiar with those. We're not working from the position of everything is a free for all except for a very, very good reason. But instead, you can print whatever you want, but once you're selling it, we may punish you. But also we want to be careful about what we make illegal. And I think that's one of the first sort of like mind flops that you have to make when you're thinking about constitutional law with the first Amendment. That you read the text and you're like, oh, freedom of speech. I can say what I want unless they have a very good reason. That's not actually the value that is coming through the First Amendment. The prior restraints is much more important at the origin.

That's sort of the background for the First Amendment. But I think if we look at this very narrow definition of freedom of speech, it kind of explains why we don't see case law about obscenity for quite a few decades in the United States. It's neither prosecuted nor protected. I'm using the word obscenity specifically here because that's the legal category. It's just. They just didn't care about it. It wasn't seen as like something that was a concern of the government. Whether something was obscene or not, like obscenity does not appear in the First Amendment. It's not something that's protected or prosecuted because it's. They're really concerned with sedition and libel and things are just out there. And they're not. They're not concerned with punishing them because it's not. It's not seen as like an issue for the government. It's not until sort of the early 1800s that obscenity starts getting published, and that definition of obscenity has to be developed. So we start off with obscenity just meaning sort of the general definition of it. And then as the case law develops, we realize that we need a legal definition of it because the definition of obscenity in sort of the general definition is so personal and not consistent.

And we want these definitions to be consistent. So in the 18th century, bookstores in the colonies in England carried mini books that would be subject to future litigation. We can see this in our sort of association with the colonial period. It tends to be a little bit more freewheeling with free speech than the Victorian period. I think we see this in romance novels. The 18th century is a little less rigid than the 19th century. So things like the Boccaccio's Decameron or just out there, and this has become subject to future litigation. Also explicitly pornographic works. They had fun titles like Letters of an Italian Nun to an English Gentleman that were pornographic, they were sold in stores, they were not subject to prosecution. This was just something that people bought and purchased. And I mean, there are lots of things that we think about as, like, just not the business of the government. This is kind of the attitude towards obscene materials in the founding of the country.

Chels

It's not the government's. It's not the government's business. What, an Italian nun is writing to an English gentleman.

Emma

Exactly. Right. It's not.

Chels

That's between the English gentleman and the Italian nun. Thank you very much.

Emma

Is this, like.

Beth

But this is kind of. I feel like, how it goes. It's like you kind of have, like, this free period, if that makes sense, and then kind of like a backlash. Like, it kind of feels like it goes like.

Emma

Right. I mean, I think we can think about other, like, think about our attitudes even now towards, like, personal sexual relationships that I think it's also had a sort of similar ebb and flow where, like, originally it was like, there weren't laws against it, but also wasn't protected. It's like, this is just something people did, and the government didn't defend your right to do it, but also wasn't prosecuting you for it.

Beth

Right.

Emma

And then it's like, as their sodomy laws sort of get developed, then it becomes the government's business because they're prosecuting for it. And then we realize that the prosecutions are unfair. And then we become. Then we protect the right, the privacy. But it's like, it's not like you had the right, then lost it, and then got it back. It's more like you didn't have the right. It just. It wasn't like a thing that, like, they cared about. Like, there are lots of things, like, you can think about anything, like, minuscule that the government doesn't care about. Like, the government doesn't regulate what I eat. It's. It's none of their business. But also, you can imagine a world where the government does regulate what you eat.

It's. It's one of those things where it's hard, kind of hard to imagine in the negative, where it's like, they just don't care about it. Because I think we're often thinking about the government in terms of what they do care about. Uh, but, yeah, it's just none of their business. And then we start getting obscenity prosecutions happening in the United States. And I. I thought. I was thinking, as I was writing the episode, I was thinking, I was like, Beth is going to ask this question, so I have to have, like,

Beth

oh, I was like. I was like,

Emma

Beth is going to ask, like, what were they prosecuted under? What statute were they prosecuted under? I was like, Beth is going to wonder, like, what. What the details are of, like, how does this actually happen?

Beth

I am curious. Yes, please tell me.

Emma

And this is one of the reasons why I explained common law. So common Law before, I think the 1930s, is when we totally got rid of common law crimes in the United States. At common law, you could bring a suit to a judge and say, someone did something wrong, I think you should prosecute them. And the judge could. Even though there's no law against it, the judge could say, I agree. Like, you should be prosecuted for this. That's a common law crime. This is how crimes get developed in the United States. We don't have these anymore because of, like, notice requirements. Like, we've decided that under our Constitution, you can't be prosecuted for a crime that's not against a statute. And this is basically what happens in the 1810s, is that people are seeing obscene materials and they're saying, like, I don't want that person to be sharing that anymore, publishing that anymore. I'm gonna. I'm gonna bring a suit against them, and the judge is gonna. A judge may or may not agree with me. And then in 1815, a judge agrees with someone. So this happens in Philadelphia, and it wasn't a literary work.

This is the first obscenity prosecution in the United States. It was during the second Great Awakening. So this height, like, heightened evangelical Christianity in the United States, which is going to be a theme throughout the episode of, like, when prosecutions key up. So a tavern owner was prosecuted for displaying a painting of a man. Obscene, impudent, and indecent posture with a woman. So it's in. It's inside. Basically, from what I can tell from the case, it's like an early porno theater. Like, he's inviting people in to, like, look at the painting. And he's like, look at this hot painting I got. And I'll charge you to, like, look at this painting, which is. I think it's kind of charming.

Chels

That's really cute.

Emma

Yeah. People have always wanted to look at porn together. And I'm like, that's. People are always people.

Beth

It brings us together.

Emma

Right? I love it. We have this sense that this is some sort of new seedy development in the 20th century. It's like, no. Guys have always wanted to jack it together looking at porn. Like, cool. So the guy, the tavern owner, argues there's no law against this. He does the Beth defense. It's like, what are you prosecuting me for?

Beth

Exactly.

Emma

And then they appeal it. But the Supreme Court in Pennsylvania held that there's no law protecting the speech either. Like I said, they're not protecting the obscene speech. So he could be indicted and prosecuted. If the judge says common law obscenity is a crime. So this probably offends a lot of due process, sort of flags in people's minds. But these concepts are still developing here, like what we have as due process in the United States. And so these conservatives in the period are able to, like, react reactionarily to obscene materials. Then our first literary Prosecution happens in 1821 with Fanny Hill. And Fanny Hill is going to be a theme of the episode. So Massachusetts and Fanny Hill both come up a lot. Massachusetts loves to ban books.

Chels

Wait, have you read Fanny Hill?

Emma

I've read the sexy bits.

Chels

Okay, you just skip to the.

Emma

Because I wanted to see how, like, how obscene it was. The answer is not.

Chels

It's regular because, like, I've never. It comes up in. In historical romances all the time. And it's also fun to say,

Emma

It's extremely euphemistic.

Chels

Okay. It's so. It's really.

Emma

So I think with Fanny Hill, it becomes this, like, lightning rod for a few different reasons. One, because it's so famous. And that's, again, a theme of book banning. It's not about the content of the book as often as it's like, these books are lightning rods. It's like these books get singled out as somehow subversive. Fanny Hill also includes lesbian scenes. That also seems a reason why it's prosecuted more often than other sort of pornographic books. It's also this sort of, like, the way that it ends. She's like, oh, like, she redeems herself by getting married and is like, oh, but like, I had a lot of fun. And. And so it's not. She doesn't die at the end. So that's also seen as subversive.

Chels

It's not really, like, a moral message.

Emma

Of, like, it's not a moral morality.

Chels

Fanny Hill, you must pay for your lesbian crimes.

Emma

Right. A lot of these sort of more pornographic things would be couched in, like, like, oh, well, she dies at the end.

Chels

So you can like, a morality play.

Emma

While she's having fun then. But it's a morality play.

Chels

Okay.

Emma

Like, I think like, Pamela and Clarissa.

Chels

I was gonna say that's like Pamela.

Emma

Yeah, yeah. And so Fanny Hill is extremely euphemistic and doesn't actually use any four letter words, which, again, four letter words are a big thing where it's like, in 2025, I'm like, who cares? But they did.

Chels

Are there no, like, wait, is it four letter words? Is that. I've never understood this. Is it literal? Or are all curse words four letters? I don't understand.

Emma

So I think it's the curse words. It's like the list of ones that you care about are four letters.

Chels

Is this a coincidence or by design?

Emma

I think it's by. It's coincidence. Okay, that they're. But it's like they're like some of the books that are like Lady Chatterley's Lover, which will be a part of the case later. Like Lady Chatterley's Lover is not particularly sexy except they use the word cunt. And that's basically why it's prosecuted, is that they include the word cunt. And it's like, that's. That's enough to like get it prosecuted. Even though the rest, even the sex scenes themselves are pretty euphemistic. Even in like a non sex scene, I think is when he uses the word cunt. So that.

Chels

Does he use it as a pejorative or is it like a clinical.

Emma

It's clinical. It's basically this like working class man describing a vagina. He's like, this is. He's like. And the Lady Chatterly's, like, does. It doesn't know what he's talking about. She's like, what are you talking about? And he's like, that thing. And she's like, oh, my cunt. It's like, it's like a. It's a shared. A shared experience. And also, I mean, that book also the working class romance of it all. And like leaving her fancy husband, also subversive politically. So importantly with Fanny Hill, though the judge relies on the description from the prosecutor. He does not read the book and refuses to examine the book because doing so would put passages in the public record. And that's a bridge too far for him. He's like, we can't even have this in the courthouse. This is too dirty based on what the prosecutor describes it. And again, this is a theme of people not actually looking at the whole book. They're looking at excerpts. Again, a theme of book banning. This is how people do this. Now, in both Fanny Hill and the Tavern case, judges both assume that the nature of obscenity doesn't need to be explained.

It's not a legal term. It doesn't get a definition. And then after these two cases, we don't get prosecutions for a while. Obscene materials were certainly being produced, but prosecutors have prosecutorial discretion. If they don't care to prosecute, we don't get legal records of them. We have these two cases that are sort of like standouts and then it falls by the wayside. America has going through a lot in the 1840s and 50s and 60s. So maybe they're less concerned with prosecuting porn cases. But the war, so Civil War creates a lot of men hanging out together, creates a lot of cities. And as we see urbanism happen, we get more and more porno magazines with great titles that I thought Chels would like. So the Rake, Flash, the Libertine. And so these are things that are circulated among men in the Civil War. They pass them around. And so as we're just getting more men hanging out together, there's more porn. There's also a lot more burlesque shows in live new entertainment. I was thinking about Kansas City, the song from Oklahoma, where Will goes to go see a burlesque show. And everyone, he's like trying to describe it in sort of innocent terms, but that's in the 1850s and 60s.

So we're having like live entertainment and more publishing, which is just a theme of urbanization, that more people are buying books and selling books and there's more porn in all of them. So that's the backdrop. And now we're actually start getting like more case law and like more prosecutions. So we're going to go back to, to Ye Olde England because we don't actually have a test for obscenity in the United States yet. So. And this they did they do this a lot. They go back to English for common law test. So England has a sort of similar trajectory of concerns about obscenity. In 1857 they passed something called the Lord Campbell's Act. And this makes selling obscene materials a statutory offense. England also has common law crimes, but they also do statutory offenses when they can.

Beth

What's a statutory offense?

Emma

So that just means that the legislature has passed a law against something. So we no longer have to go to the judge and say like, hey, this is a common law crime. Or like I'm not asking you to prosecute based on common law. It's more, it's more existing. Yeah, we have existing law to draw. So it's like it's easier to prosecute basically. So in this case, Regina v. Hicklin, which is how they say it, this is what England courts try to define, obscenity. So this is the first definition of obscenity we get before this. We're just using our sort of lay people understanding of the word. And I think importantly, the pamphlet in question in this case is an anti Catholic depiction of priests taking advantage of women. Like priests are having sex with nuns in the pamphlet. And it's basically saying this is what Catholics do. Be A Protestant. It's like this political paper that's anti Catholic. So it is. It's like simultaneously porn and anti Catholic. So the question for obscenity is now whether the thing in question has the tendency to deprave and corrupt those whose minds are open to such immoral influences and to into whose hands a publication of this sort may fall.

Beth

How do you define who could be corrupted? Who would have a tendency to be.

Emma

Corrupted so that it doesn't say to this definition, but what they mean by that is children. The idea is that a child could happen upon this pamphlet, not understand the context that this is actually anti Catholic propaganda. They could read it and be like, oh my God, priests are having sex with nuns. And like, I'm going to be titillated because I'm a child and I don't understand like anti papal sentiments.

Chels

It's kind of amazing how early the sexual obsession with nuns started. Yes, like this is like, this is a theme in pornography for a really long time.

Emma

Yes. Nothing is new. That's the thing. The more you look into the history of porn. No kinks are new. No, nothing is new. People have been looking at the same stuff forever.

Beth

I have a question. So they don't just say children. How do you legally define a child? Does that make sense?

Emma

It's not necessarily that Hicklin is saying children. It's more like when people look at that definition, they're like, that's still unclear. And so what we're going to do, read into that is children. And so what it ends up being is that all that context of the anti papal sentiment falls away. It's a way to sort of defang any sort of artistic or political context from the work. It's like, okay, well a child wouldn't understand the literary or political context of this work. So I can read it in the most literal, decontextualized version of this because a child wouldn't get it. And I mean, it's like book banning. It's a fictitious child. It's not a real standard. It's more like we're gonna imagine the person with the least amount of context is gonna read this and would it like, would it tend to make their mind more, more corrupted? But again, like, that corruption standard is bizarre. What it, in practice, what it means is that the, the, this can be applied really broadly because you only have to show a little bit of corruption in like the Dumbest Imaginary Child. But I think it's telling that the criminalization is really a political pamphlet.

And again, like I think sometimes people, especially people who are. Think that they're well meaning or think that they're more liberal when it comes to free speech. Will. Will try to make this line between, well, like, we don't want sexually explicit material in the hands of children. Like, I agree on that. But we also want to protect political speech or we want to protect queer stories. The line is not being drawn by conservatives who are banning books. That's true with Hicklin, and that's true now is that they're. They're putting them part and parcel. So when you try to make this line between them, you're kind of playing into, like, their game and their language.

Chels

Because everything could be offensive to this imaginary child.

Emma

Yes.

Chels

So like, anything that we don't. Yeah. Anything that we don't agree with is gonna. Like Tommy over here is gonna be corrupted forever. He's never gonna eat Froot Loops again.

Beth

So.

Emma

Right. So like, we have this linkage between the criminalization of political speech and obscene speech, because political speech, I think conservatives and liberals alike will often get, like, up in arms about free speech as like, oh, we want to protect political speech. We want to protect. Like, this is what the values of free speech are. Like, obscene is kind of like a backdoor in a way to suppress political speech without actually having to trample on political speech rights. So in a world where prosecutors have to actively seek out cases, again, because I think you have to think about the scale of publishing at the time, is that the way that these prosecutions are going is that prosecutors are going undercover to booksellers and asking for books, and they're actively seeking out certain books, and they have to be things that are already published because of the prior restraints, restrictions. A lot of this comes down to choices made by government actors who are definitely using speech as a cover for political. Like using sex as a way to cover for suppressing political speech, like, I think people act like that's a surprise or like a secondary message sometimes of how this works.

It's the main thing. It's the main thing, like political speech is what they're trying to suppress. So that's the test in the uk, the Hicklin test, and that's used there for a long time. And then as the boom of pornography is happening in the middle of the 19th century, that's when we get to Anthony Comstock and the borrowing of the Hicklin test to the United States, which people immediately sort of have issues with. But also that's the test that they use for A while. So Anthony Comstock, he sucks. He's the worst. Probably one of America's great villains and also a great example of an American who had a weird thing and then we just gave him too much power and then we all have to deal with it. Now I think Joseph McCarthy is like this and like J. Edgar Hoover are the two where it's like we let their weird, like these guys who are weirdly obsessed with things come into power and like we act like everyone needs to be obsessed with them. It's like, no, Anthony Comstock was like bizarrely obsessed with porn and now we all have to deal with it.

Like he's, he's very bizarre. So Anthony Comstock, his background is that he's from Connecticut. He's from like a gentry family. He joins the Civil War and he's disgusted. He's like, these men are cursing and they're jacking it to porn. And oh my God, I didn't know that they could do this outside of Connecticut. Like, he's like, connecticut, I never saw this before.

Chels

So wait, he went to war and that's what he's mad about?

Emma

Yes. Apparently he spent most of the time in the war, like evangelizing. He was like, I want you to, I want to save your souls. Like, he was not a good soldier. He, he spent all the time with men being like, oh my God, like they're passing around porn and I need to save their souls. And so he goes to the Civil War and leaves it and it's like, I need to go to the center of vice in the country. And he goes to New York to save. To save the country. Anthony Comstock's background is like a union soldier upset with porn being passed around on the other side in New York. What's happening is in 1844 the YMCA was founded as a reaction to non sexual activities for men to do in the cities. He's like, all these brothels are coming around and like men are going there and having sex and it's like, we need to come up with like, we need to invent basketball so that they can do that instead of having sex. So the YMCA in their sort of first 20 years, they're lobbying for a statute against the distribution of obscene materials that said not existed in New York yet and in 1868.

So after a civil war, they're successful. Like you cannot distribute obscene materials in New York thanks to the ymca. However, the cops are like, we have other things to do, like, who cares? Also, the cops probably are also looking at the porn, fearing that the cops aren't going to care that much. The YMCA develops an extra legal force to implement the statute. And New York's like, sure, do whatever you want. So they charter them and they're basically funded by the fees associated with these, like, vice squads. And so the person in charge of the task force is Anthony Comstock. So the YMCA had already been founded when he got to New York, but he got there and he, like, worked his way up. And the task force is called the New York Society of the Suppression of Vice.

Chels

What is this, like, Guardian Angels for losers?

Emma

Like, I'm sorry. Yes. I mean, it is like, these like, nerds who are not cops, but have the power to search, seize and arrest because New York is like, I don't want to deal with it. And they just let them. They let them do it. And they're basically self funded because they're funded by the fees associated with the prosecution of the statute. So it's like, it's kind of like ICE in, like this extrajudicial thing where it's like, they're like, they're separate and they have their own rules and, like, they attract losers and like, they're doing this thing that, like. And it's the service provided to the government that, like, we used to not have that, like, we don't need. Like, the government could be doing these prosecutions on their own even if they had the statute. But they kind of. They want this other force to do it. That sort of takes the heat off the government too. It sucks. And then other states sort of model themselves out of this New York society. This is also during the Tammany hall period of New York. And so there's a lot of corruption that the conservatives can react to.

And so, like a loud, zealous, indefatigable voice could really get a hold on local politics. So Anthony Comstock's out there, like, railing against porn, and he's sort of seen as, like, an answer to the corruption that Tammany hall allows to happen with their, like, sort of fingers in the pot of gambling and brothels. So he's involved in efforts in New York for a few years, but then he's like, this is not enough. I need to go. I need to go to D.C. so he extends his lobbying efforts to D.C. and again, he's loud and indefatigable. And Ulysses S. Grant in 1873 signs what we know as the Comstock Act. So the Comstock act, which is still in the books. This is very important when it comes to, like, like abortion right now, this is a huge. I think Jessica Valenti writes a lot about the Comstock act and how it's used to suppress reproductive health materials. It's still on the books, but they make it a federal crime to use the USPS or the US Postal Service to send obscene materials, crime inciting materials or abortion related materials. And to Anthony Comstock, these are all the same thing, basically.

So this is when prosecutions really start to kick up in the state and federal level. And from 1873 to, like 1900, we're in like a extreme level of censorship in the United States. So the ban from the Comstock was specifically on obscene, lewd, lascivious, or filthy materials, but does not define those terms. And the scales on which his goal, like, he achieved his goals were successful because it covered both obscene materials, but also reproductive and sexual health. And he personally grouped them all together. Like, to him, the Arabian Nights, which was essentially a children's story that had sex in it, to him was like the same thing as a pamphlet about a pill. He grouped them all as sexual literature. He made distinction between them. And of course, like. And we can see how the passage of that law is not just about sex. It's about political speech as well. So here's a quote from a Yale Law Review article, which is interesting that it came out of Yale Law Review, because Yale Law also produces all the people who are trying to bring back the Comstock act, like J.D. Vance. Like, oh, J.D.

Beth

Vance.

Emma

I was like, so it's like there's like a pocket of Yale Law people who are. But kind of like the Comstock guys. But this is a reaction to that, I think, because this is from 2025. So here, I think, Beth, you could read this.

Beth

The goal of chilling political speech about intimate life motivated Anthony Comstock and the patrons with whom he worked to enact the law. The drive to pass the statute began when Comstock sought to censor Victoria Woodhull, a prominent advocate for women's suffrage and free love, a successful stockbroker and the first woman to declare her candidacy for the presidency because she had objected to the sexual double standard, complaining of a prominent minister's sexual infidelities that would not have been tolerated in a woman. It was Woodhull's 1873 acquittal under then existing federal obscenity law that led Comstock and his allies to advocate that Congress adopt a new, more expansive obscenity law.

Emma

Yeah, so again, we, like, we're thinking it's about his, like, porn fixation, but it's like that porn fixation is always connected with, like, political speech. Like, it's not. It's not separate. You can't separate them. He. And he's also able. Comstock's, like, porn fixation is his motivation, but he's also able to garner support in D.C. because of this reaction to Victoria Woodhall, who basically her her obscenity trial, she gets acquitted because the obscenity law is not as extreme as it could have been. I think, importantly, Comstock also specifically hates fiction. So he once said that novels, generally speaking, are instruments of abomination and ruin. He hates all fiction and just evidence of him, how shitty he is. He also bragged that he called. He caused 15 deaths by suicide over his prosecutions. Like this.

He's just the worst. So during this period, basically, all fiction and poetry become suspect. And I think looking back on it, I think. I don't think a lot of people are aware of, like, how suppressed literature was in these 30 years until, like, 1900, because even a single line could lead to punishment because you don't look at the work as a whole. You use the Hicklin standard that says the tendency to corrupt, even, like, the stupidest child. So basically, all adults become limited to things deemed appropriate for children. And a single line could mean something could be prosecuted. But pretty quickly, there's, like, reaction to this. Like, people, like, even people during reactionary periods, there are people who are like, this is too much like a parallel sort of movement that's happening in the courts is a resistance to criminalizing, like, quote, unquote, classic literature. And this becomes a theme in the jurisprudence, like, for the rest of the century classics, they absolutely were banned. It's not that it was so successful that they never got banned or expurgated, which just means, like, the sexy bits were taken out. But for a while, a part of the consideration of the, like, the quality or the classic nature of a work could consider, like, how you.

How. How extreme the ban was. And so for a while, judges were trying to figure out, like, is this book a classic book or is it a contemporary book? Or, like, what. Like, they're doing, like, a quality test that. That's since fallen out of favor a little bit. But a lot of this is stuff coming over from Europe and it's in translation. So we get a lot of litigation about it because each new translation will have a new trial about it. Like, how do they translate the sexy bits? And, like, how extreme is it? So examples for this, like, are the Arabian Nights and the Decameron and one successful sort of defense of this. So Comstock is trying to prevent the sale of, like, this dead stock of Arabian Nights and the Decameron. He tries to prosecute. But the New York Supreme Court introduced. This is where they introduced the whole book concept. And so they're actually looking at the whole book, the whole quality of the book. And this is going to be adopted later in other courts, and they take a whole book into consideration. And the justice in this case seems to think that literature classics are definitively not obscene, that if something has risen to the level of classic, that we want to read it, we want to value it, that there has to be this line between obscenity and literature.

So if something is considered literature, it cannot be obscene. And so they're starting to try to draw this line of the impact on society. We don't want to ban these books. So that's where we get introduced, like, the whole book concept that we're looking at the whole value of the book to society. But during this period, contemporary works were banned much more often. And I think the ones that we get banned the most we can see, again, are, like, political decisions.

Beth

Do we want to stop for a sec? Do you have any questions, Emma? Questions for us where you've just told us you could check our knowledge.

Emma

I guess it's like, classic. I think we still see this, though. Like, people. Yes. Like, valuing. If something is, like, in the canon, it's, like, not obscene, but something like. I'm thinking about contemporary romance novels that people will condemn books being obviously something about Icebreaker, because I'm always thinking about Icebreaker. But it's like, those sex scenes are not necessarily any sexier than classic books. That. And it's just people still have this divide. I don't like this divide, but, I mean, it's useful to keep some books in libraries during this period. But I think it's kind of absurd.

Beth

How did they define, like, you said this. This fell out of favor. Like, but how were they defining classic literature? Like, was it just a time?

Chels

Is Marquis de Sade getting in there? Like, what is happening? Like, what is a classic?

Emma

I think it's the classics of, like, is it like. Well, is it read by, like, people who are, well read? Sort of one definition. And these are the audience. Yeah, the cases of, like, is this something like, there's a huge, like, classist divide. It's like, is this something that would be read at Harvard or something that would be sold to the bookstore? Like, that's sort of one of the divides and like, this, like, academic pursuit and people. This is something that is brought up in case law of like, oh, like, we want to protect the intellectual's ability to access these books, even if it would corrupt the dumbest person. And that is like, a very real thing that is happening in the case law. So, like, Marquis de Sade probably maybe would not be included. Where it's like Arabian Nights is seen as this, like, this translation. It's like this insight into this world that, like, academic men care about. And like, Richard Burton's translation specifically of Arabian Nights has all these footnotes that explain, like, sexual practices that are. It's very Orientalist, but that's seen as an academic text. And so those being read by people who are intellectual, the judges are trying to protect the access for those intellectuals, even if it has the tendency to corrupt people that they see as less academic or less intelligent.

Chels

Okay. And then works that are more. Or like philosophy or things that are more overtly political, and those are not kind of in question at all because they're not fiction. And these are falling under, like, I don't know, is sedition still in play? What is happening?

Emma

Yeah, I mean, sedition. So sedition in the United States at this point, it's still a crime. It doesn't get, like, sedition. It gets really narrowed in the 1930s, like, pre World War II. But this is specifically. I guess the classics are specifically fiction books, which I think are seen as actually more corrupting because they can be more insidious. But I think when they're talking about literature specifically, I guess obscenity wouldn't come up with the strictly political text, so it'd be a different test.

Beth

This is kind of a tangent, but as we were talking about, like, that crazy standard, like you with the hick. I guess the Hickens test, where it's, like, essentially, like, the Dumbest child. But it did remind me of, like, how feminists talk about romance novels in, like, the 70s and 80s. And, like, my arch nemesis, Janice Radway, talks about, like, you know, stupid housewives reading romance novels and, like, learning the, like, the wrong lessons from romance novels. Like a. Like a. You're. You're gonna learn to accept abuse.

Chels

Romance fans, people who read tons and tons and tons of romance, who talks about them, who are in forums, like, we'll talk about romance readers this way. And I think that. Yeah, and it's like the Dumbest Child text is like, the test is like the dumbest feminist. Like, they want to be feminist, but they're reading this book and they can't quite figure it out.

Beth

Yeah, it just feels similar to me, like the same kind of. I know there's very. A clear line between, like, think about the children. But I feel like the standard is getting applied to lots of readers and it kind of like what you're talking about the classics, like, who is the audience? And I think we kind of forget, like back in the day, like mass market books. Like, it was like a very clear audience of like here you have like the smart people reading like classics and then we have like the mass market for all the idiots over here.

Emma

So I mean, and this is so the 1860s and 50s or 70s. It's like, this is pretty mass market book. So these books are still very expensive. And that's brought up in some of the case law, like, that they say, like, they look at the books that they're seizing because one of the remedies for the books, like when they seize these books from like dead stock sales would be to destroy the books. And so they look at the books and they're like, well, these are really nice books that can be sold for a lot of money, so they're probably not going to be sold to the dumbest people. And that's literally language that's in the cases. And so that is absolutely a consideration of the people who are buying these books are probably wealthy and have been to college. So we shouldn't suppress them because we'd be suppressing the sort of intellectual minds that are going to be able to read this without jacking it. Is the implication, kind of no mind.

Chels

Is too intellectual to avoid that.

Emma

Right. So. And yeah, this value of like literature and classics is like, that's definitely the implication. Which it's. It's like, it's one of the. This happens a lot, I think, in old case law where you're like, oh, this is. You're doing something like. That's ultimately I agree with. It's like you shouldn't suppress literature, but also like you're doing it for a reason that is effectively like classist and a eugenicist, which is not uncommon in the 19th century. So we see that's class and they're treated very separately. So the flip side of it is like contemporary works. So Leaves of Grass was one of the most banned books in the late 19th century. And so what happens with this is that the New England version of the Suppression of Vice society writes to the publisher and wants them to remove some poems from the publication, which sounds like prior restraints. And so prior restraints is a common law concept. But, like, people still ask for it to happen and, like, you have to resist it. And it's not yet calcified in Supreme Court precedent. But Whitman, when he gets the request from the publisher to remove some of his, like, more sexy poems from Leaves of Grass, which also sexy explicitly, like, the reason that they're being taken out is because they're queer.

So instead of litigating them, he takes the book to another publisher that isn't going to kowtow to this request from a reader. And the reader's not really just a reader. It's a reader from the suppression of vice and the scandal leads to more sales, which this happens a lot. So banned in Boston becomes like a thing that is a bragging right. For books in other cities. Because Boston is so aggressive when it comes to banning books. So the scandal leads to more sales. But we see how this is not really legal pressure, it's more social pressure, saying, this suppression of vice can write to the publisher and say, if you don't take out these poems from Leaves of Grass, we will prosecute you. And so it's this sort of pre litigation pressure that's coming. And so it's not actually being dealt with in courts. It's happening. We want to avoid the cost of litigation because litigation is so expensive. What's also happening in Boston, again in this sort of pre litigation pressure is that booksellers are refusing to sell books because they're protests outside their bookshops or performers in burlesque shows are being run out of town, literally chased in the streets.

Also, we need to think about how information moves more slowly in this period. So cities work really differently. So things could be effectively banned in Boston but be fine in New York. And this wasn't seen as contradictory because of this community standards thing that is developing where different cities are going to have different community standards. And of course, like I mentioned, the. The gay themes of the sexual content in women's poetry are absolutely why it was sort of singled out as a height for heightened scrutiny.

Beth

Can I ask, like, a dumb thing, but also I'm thinking of non Americans listening to this. Is there like a more. Because, like, Boston has, like a very strong Catholic influence. Is that what is driving this or is that too.

Emma

Yeah, I mean, I think Catholic and also just sort of like Puritan. Like, Boston is just seen as. It's got all those, like, Boston Brahmin families that like, came over on the Mayflower. She just seen it as like a very conservative And I think also it became like, a point of pride. And it's sort of, like, cyclical. Like, like, we're going to be more aggressive. But yeah, I mean, the things that get banned in Boston are like, any sort of reference to, like, premarital sex. Like, if someone, like, movies get banned in Boston, if they're. That are much more aggressive than even the Hays Code. But again, it becomes a point of pride for, like, in cities like Chicago or New York, like, they could advertise the movie or book as, like, this is banned in Boston, which means it's so salacious and so you'll want to go see it. Yeah. So Leaves of Grass, not subject to a ton of litigation, but has this, like, social pressure on it, but an actual example of litigation that comes up for, like, a contemporary book that I think is relevant to, like, our romance history is Elinor Glyn's Three Weeks.

I think we've mentioned Elinor Glyn on the podcast before. She's sort of one of these, like, grandmothers of romance novels, kind of.

Chels

Barbara Cartland really liked her.

Emma

Yes. She was one of three, Cartland and Heyer. And she wrote books that were, like, a little cheeky. But then Three Weeks is much more explicit because the plot of Three Weeks is this man has a broken engagement, and his reaction to this is to go have an affair with a married woman. And so there are all these references to the three weeks they spend together. And it's kind of hacky. The sex scenes are she's on a tiger rug and she's holding a red rose between her lips. Very campy.

Chels

Is that where that comes from?

Emma

I don't know if it's the origin of it, but she definitely uses it totally straight. Like, she's not doing any camp reference at all. Yes.

Beth

Oh, my God.

Chels

I only think of, like, Bugs Bunny doing that. I don't know.

Emma

I didn't know that was happening in Elinor Glyn. She became this sort of, like, joke. Like, there was a Mickey Mouse cartoon that got banned because a cow in the cartoon is reading Three Weeks. And so that's how extreme people's reaction to this book was that, like, a fictional cow couldn't read the book in a cartoon in the 1930s because, like, that joke is too far.

Chels

We can't be mad about the fictional child anymore. Now we got to be mad about the fictional cow.

Emma

Invent a horny cow.

Chels

The dumbest cow in the world is corrupted by this book.

Beth

I'm going to clip that out of context and just post on Instagram.

Emma

So this book gets published in the UK and then reviewers in the US start getting it, and they condemn it. They're like, this is too sexy. And then immediately people are like, we got to read it. Three weeks. So the watch and foreign society puts pressures on booksellers not to sell it, which creates this de facto censorship like Leaves of Grass. But then a bookstore purposely sold the book to a vice inspector to trigger litigation. So unlike Leaves of Grass, which they're trying to protect from litigation, and they're just. They don't want to avoid that. They want to avoid the cost of it. Three weeks. They purposely look for a litigation to try and change the standard. And this, again, will be a theme of people purposely engaging vice squads to try and get the standards to be more liberal. So they're charged under the obscene materials manifestly tending to corrupt the morals of youth with the red woes on the tiger rug. Interesting. Again, the grand jury does not quote the book because quoting the book would put obscene words into the public record. So even in, like, a century later, they're afraid to put naughty words into a court record.

So we don't know which books, which parts of the book they took issue with. But then the higher court finds that obscene is not a legal term. And so the courts don't need to define it to a jury. So the people in Boston can just side whatever obscene is that's obscene, so they're left to their own ideas. And so the impact litigation doesn't really work. It sort of just reinforces these ideas that, like, people get to decide what obscene is. And we don't need to tell you what parts of the book we're taking issue with. So that's the 19th century. And so, again, it's hard to emphasize how much a culture of suppression is happening at the end of the 19th century, which I don't think we see a lot in cultural depictions of that period. I don't think we're. I don't know. If we think about it, it's like this sort of low point of artistic expression, especially in literary works. But as the 20th century comes around, people are starting to think, like, what is obscenity? We need to define this term because it's not working for us. And we understand that obscenity is not protected by the First Amendment the same way we understood that libel is not protected by the First Amendment.

There are certain categories of speech that just don't fall under that rule. But they're starting to see this position as, like, the one lying, corrupt. One child is Pretty extreme. So Learned Hand, who is my favorite judge is named ever. He writes in a dissent in 1913. This is. Every time I'm on a trivia team, I insist that we're called Learned Hand Job. Sometimes it hits, sometimes it doesn't. He points out in dissent. So this is not the rule. But we're starting to see people take issue with this. He says few people would be content to reduce our treatment of sex to the standard of a children's library. He says that obscenity should be defined at the present critical point in the compromise between candor and shame at which the community may have arrived here and now. So he's starting to look at this community standards thing rather than this extreme. He's like, if we're going to use the jury and let them define obscenity, we should not give them the rule about the standard, the dumbest child. And so we're trying to look at the community standards instead of this imagined child. So we're starting to get that in 1913, but it's not the rule yet.

But then, so changes are going to keep coming throughout the 20th century. So in 1933, in a case concerning Ulysses, this is when we get the whole book rule. So this is where we start the changes to establish precedent. Actually, anyone have any thoughts about the imagined child before we abandon the imagined child? He'll come back later, but I can't.

Chels

I wish we could have been the imagined child. Yeah, I just like, I. I think it was like an Eleanor Stern TikTok or something that I've been thinking about a lot as we're going through this, where she, she talks about how people on the Internet are. Have this problem where they cannot react to art, they can't react to a movie or a book without imagining a child's point of view of it.

Emma

Yes.

Chels

And she, and she says, and she says in the TikTok, she's like, you're 32. What do you think about it?

You're making up this like, stupid. It is a stupid child also. It's always a stupid child. You're making up this, like, fictional stupid child who's gonna be stumbling across this inappropriate material. And every reaction needs to be filtered through that very dumb child's lens. And it's like, how do you live like that? How do you watch movies, listen to music, read books? If, like all of your initial reaction is, oh, man, if like some 7 year old was reading this, what would they think? Like, I don't, I don't I don't understand, but it's like a thing that's, it's very common. It's, it's like we're reading. As you're reading this, I can picture people being like, oh, this is awful. Yeah, these people. So stupid using the law like this. And I'm like, your peers are continuously doing this. Be more diligent and call them silly, make fun of them.

Emma

I think part of that with the imagined child is that people who do that act like they're the first person to do it. They're like, actually, what if we thought about this imagined child? What if we thought about this eight year old who got this book like off a shelf and. But it's like you're doing what reactionaries in the 19th century did. You're not inventing something new. You are engaging in an impulse that people have had for centuries. And you're not, you're not novel for. You're not uncovering something that needs to be uncovered. It's, it's legal precedent.

Beth

We've talked about this before with like sometimes like booksellers or librarians on TikTok and it's not an imagine. I guess they're projecting onto this child.

Emma

Yes. They're imagining the child's mind.

Beth

A teenager.

Chels

Finally a real child.

Beth

Well, I'm not sure. Sometimes they can wring their hands over, comes up and they are about to.

Chels

Buy like icebreaker or.

Beth

Yeah, yeah.

Chels

Or maybe Anna Huang, like something that's like an adult romance that is not for children.

Beth

And, and they like bringing this question to Tik Tok, like, should I have said something to their parent about this book?

Emma

Like, no, no is the answer.

Beth

No, don't be. Yeah, don't be, don't be like that.

Chels

Don't be a cop.

Beth

Yeah, don't be a cop. Yeah, it's. I think people like what you're saying, Ches. Like, people think they're not like that, but they're absolutely, they are absolutely like that.

Chels

Because what is the, it's like, what is the thing that you think is going to happen in this scenario? Okay, so somebody, a child reads Twisted Fate or something. They're 10 years old, they read it. What do you think they're probably like. Because for me. And that's another thing people always hear, like, well, don't use personal anecdotes. I'm like, well, make me stop then. I don't know, like when. Because like when I was, when I was a kid reading my mom's romance novels, like, which I love to do. But, like, most of the time, to be honest, I would just kind of glaze over the sex scenes because, like, I don't know what that is. I don't say the nice, romantic stuff again.

Beth

Like, I feel like people sometimes act like what they. Like, I don't know how to phrase this. Like, when they were teenagers, like, couldn't even believe what I was reading. Like, I shouldn't have been reading what I was reading.

Chels

If you're talking to someone Gen X, they're always like, Flowers in the Attic. That's the one book. The one book that they're always like.

Beth

And I'm like, if you were reading it, it probably was developmentally appropriate for you. Even if you think about that time and you're like, wow, that was kind of a little bit much for you, but it was safe for you to explore in fiction and you read it, it probably was good. It was fine. I don't know why people need to, like, pathologize their past or be like, wow, like, what a war story. I read all this. They're like, super sexy fan fiction.

Chels

It messed me up. And I'm like, how did it mess you up?

Beth

I know.

Chels

What did it do?

Emma

What do you mean? Living under, like, fascism. Like, did you.

Chels

Did you experience mild discomfort? Like, did you experience mild discomfort? Were you like, what is the. It's like, I know this is like a joke that the word trauma is. Has been, like, bastardized into nothingness now. But it's like, okay, well, if you read Kathleen Woodiwiss and you're describing that as trauma, like, I don't know.

Beth

Yeah.

Chels

Anyways, well,

Beth

there's this, like, Simon Pegg tikTok that's kind of going around because he's in the Criterion closet, and he pulls out a movie, and he's like. And he's like, my daughter watched this, and she was, like, uncomfortable. And he was like, good. Like, art shouldn't always be like, you.

Chels

Know, I like that. Also, Blue Velvet rules. Good for him.

Emma

It was like. It was such a good moment of, like, parenting. Like, I have that tweet that, like, it gets, like. It's, like, aggregated and, like, Instagram things sometimes. And I see people when they tag me, and I'm like, okay, whatever. I don't love aggregator Instagrams of tweets, but it's. It's my most viral tweet, I think, ever, that I haven't deleted because, like, I stand by it. Usually I delete tweets when they go viral because, like, I don't need this heat. But it's like, rather than being concerned with what a child is reading, be concerned with being a person that a child can talk to about what they're reading. Like, and that's what I feel like Simon Pegg is doing in that video. He's saying, like, my daughter watched this movie that made her uncomfortable. And he's demonstrating being a parent who's like, my daughter's well, is welcome to talk to me about something that makes her uncomfortable. I was like, that seems to be the thing that would solve, like, the mild discomfort or trauma is like having an adult in your life who you're not gonna get in trouble for reading something. You're not gonna get the book taken away from you if you're interested in it.

It's like, oh, I have a question about this word. I have a question about this act. That seems to be the dynamic that we should be cultivating rather than, like, let's take away Flowers from the attic from gen X. Where would gen X be without Flowers from the Attic?

Chels

What would they talk about? I'm just teasing you. Gen X.

Beth

We know that you read flowers.

Chels

But, like, no, you're our most steadfast shooters. Because every time this conversation comes up, you're always like, well, guess what I was reading. I read this, and I'm fine. And we love that about you.

Emma

Yeah. Gen X. Yeah. This is vile teasing. We're pro gen X reading Flowers with the attic. Flowers in the attic. Flowers from the storm is what I'm thinking of. Flowers in the attic. So we're going to momentarily abandon our imagined child. They'll come back up later. But the change that happens first is with Ulysses. So Ulysses comes out. It's serialized in the little review in 1922, and the episode the serialized is a masturbation scene that was read. Well, I guess we have an imagined child here because it was read by a girl of an unknown age and she was scandalized. This is the premise of the prosecution. It could be any age, right? It was like, who is this person? So that Manhattan DA prosecuted the publisher, and because it's an excerpt, they can't have the defense of like you should. They can't even argue that it should be considered in light of the whole work. So it's this masturbation scene, and then the prosecution has a freezing effect on the publication of the novel for over a decade, creating a de facto ban. Because this has been prosecuted, Nobody is willing to publish this book, which is what's happening a lot.

It's not that they're litigating it every single time it's trying to be published, it's that people have stopped trying to publish these books. So Random House publishes the book intentionally. Again, we have a publisher that has the money to do litigation, come out and say, we're going to publish this book on purpose as a test case. We know it's going to be seized. We're going to try and litigate it. So they arrange for imported copies to be seized by customs. They basically tip them off on purpose, which makes it a federal case. And so it's going to go to federal court, which is also done intentionally so that they don't have to deal with the state court stuff. It takes seven months for the federal DA to decide to prosecute because they're also worried. They're like, if we prosecute, we might lose. And we have to the change standard. And they proceed under the Tariff act of 1930, which is the Smoot Hawley act, which comes up with Trump's tariffs all the time. I thought that was interesting that, like these. These tariffs that are now being used to make us pay for our UPS packages are now were used for obscenity purposes.

So they made it illegal to import obscene material. So the book, the action was brought against the book itself, which I think is funny. It's called an in rem action, because the question is, do the books that got imported get destroyed? So it's the US Versus a book called Ulysses, which I think is just a funny, a funny title. It's against the thing opposed to a person. So the judge reads the entire book, which is crazy. I'm reading Ulysses right now, and it's taken me eight months to get through half of it. But he reads the whole book, and he concludes with pretty flowery language that Ulysses is not pornographic because it's a literary value as a whole work. So this is where we get introduced the concept of, like. When we're considering whether something is obscene, we have to consider the whole work. It's not a judicial discretion. You now have to consider the whole work. I think, Chels, you could read Judge Woolsey's like, flowery language about how he describes Ulysses.

Chels

The words which are criticized as dirty are old Saxon words known to almost all men, and I venture, to many women, that was so rude and are such and are such words as would be naturally and habitually used, I believe, by the types of folks whose life, physical and mental, Joyce is seeking to describe in respect of the recurrent emergence of the theme of sex. In the minds of his characters, it must always be remembered that his locale was Celtic and his season spring. Whether or not one enjoys such a technique as Joyce uses is a matter of taste, on which disagreement or argument is futile. But to subject that technique to the standards of some other technique seems to me to be a little short of absurd. Accordingly, I hold that Ulysses is a sincere and honest book, and I think that the criticisms of it are entirely disposed of by its rationale.

Emma

Yes. So this case gets affirmed at the district court, and it never goes to the Supreme Court. So this is a circuit court judge saying this. And this is like a sort of work how, like, hierarchy of authority works because it's in a district court case. It's not necessarily going to be the rule immediately everywhere. But this is where we get the concept introduced, and it will be like, work its way through precedent in other jurisdictions. But someone always has to bring a case. Like, you can't just. If a rule happens in New York, other districts can't look at it and be like, we want to adopt that rule right now. It's not until someone brings a case in that jurisdiction that it can become a rule in that other jurisdiction. So that's how we have these, like, conflicts of law or open questions. So continually in years after 1933, other works, literary works, sort of work their way through the courts. Another relevant to Romance is Forever Amber by Kathleen Winsoor, which I've not read, but I've seen the movie, and it's kind of like the grandmother of bodice rippers. It's a restoration romance that follows Amber, an illegitimate child of nobility, on her journey to become mistress of Charles II.

And the book was, like, heralded as the level of historical accuracy that she achieves. But it was derided because Amber uses her sexuality to advance in the world. Generally. The reviews thought it was pretty stupid. Like, the way they talk about it in reviews is similar to how people talk about romance novels sort of consistently. And the seduction scenes are fairly vague. Like a one passage where she's having an orgasm. She. It's Amber crying, half mad with passion and terror, suddenly let herself relax. Like, that's the level of description that we're dealing with that is considered obscene.

Chels

It sounds like she fell asleep.

Emma

Yeah, this is done so. And the book was wildly popular, but at the time, it was subject to censorship, litigation. There had already been a film adaptation with Linda Darnell, which is what I've seen, and it had sold over a million copies. But it was banned as obscene in 1946. By USPS, but which meant you just couldn't sell it through the mail, which is effectively meaningless because that's not how a lot of people were buying this book. Like, they were going to bookstores to buy it. They weren't ordering it from a catalog. It just was kind of theater. But the eventually there's an action in Massachusetts. It's a civil action where the attorney general is asking the state to rule on the book. Like, can we sell this book or is it going to be have an injunction? And the judge in the case basically laughs at the attorney general and the book. And the judge, he basically does like romance novel criticism. And he says things like sexual episodes abound to the point of tedium, noting while the novel was conducive to sleep, it was not conducive to desire to sleep with a member of the opposite sex.

He's basically like, this is not hot enough to be obscene. So we basically have a book being found not obscene because the judge thought the writing was too bad to be sexy. So that eventually becomes no longer deemed obscene.

Chels

Man, whenever this sounds like he does sound like a romance novel critic, it's.

Emma

Like, you can't find this obscene because no one would be turned on by this because the writing is too bad.

Chels

It's not sexy enough.

Emma

So then we get to a series of sexy books and Grove Press and their impact litigation. And this is where things really start to change. Right before we get to the Miller test in 1948, director of the ACLU tries to import the Tropic of Cancer and the Tropic of Capricorn by Henry Miller. And I would say these are the first books of the passages that I read that I was like, oh, those are kind of like, making me blush a little bit. Everything else before this is like, so euphemistic that I'm like, how did anyone ever find this obscene? But the Tropic of Cancer and Tropic of Capricorn are, like, pretty hot as far as, like, books go. They have been banned for three decades in the U.S. they've been published in France, and people would smuggle them in from studying abroad, basically. And that's how people in college read them. But this is essentially an impact litigation case where they're purposely trying to get these books to be allowed in the United States when they're trying to bring it. They try to get experts to say, like, these have literary values. They've been studied in colleges for years.

But the judge rejects the expert testimony. He's like, at face like, obscene passages can have no literary value. So, like, you cannot testify that they have literary value because by law they don't. And the appeals court affirms and stating practically everything that the world loosely regards as sin is detailed in vivid, lurid, salacious language of smut, prostitution, and dirt. And all of it is related with a single expression idea of its abandon. So it's like, there's no shame. And that's a big theme of these books, that the books that get prosecuted are not books that are the dirtiest. They're the books that are the most, like, shameless. Like, if there's no end at the end of the book, if the person doesn't die or redeem themselves, that. That's a problem. When Fanny Hill's like, I had a lot of fun. That's more of a problem than actually having her having sex. So at the same time, from the same publisher, we have Lady Chatterly's Lover by D.H. L. And it's imported from Italy, and it causes people to spend time in jail over this book. And this is what I talked about before, where the central obscenity issue in this book is the word cunt.

So it's not extreme, like long passages of sex, scenes like Tropic of Cancer. It's really just the C word. And they get expurgated, copies are published, and so that's how people read it. And so the litigation is really over. Can we publish this book with that word in it? And then Fanny Hill has been the subject of criminalization since 1921. And so that's all happening, right? Yeah.

Chels

If English people say the word, isn't.

Beth

It, like, a little different?

Emma

I do wonder, like, actually I should. I need to read about, like, the. I think Lady Chatterly's Lover was also banned in England because he published it in Italy.

Chels

Okay.

Emma

And so I'm like, what. What was the England's relationship with that word? Like, And I guess maybe it's like the posh do posh people thought say it in England. And it's like a working class word because.

Chels

Yeah, because, like, I mean, just like in 2025, that's a word that gets more use here or in the UK.

Emma

Taken it over from. From England. Like, it's become like. I mean, I remember even like 10 years ago, I feel like it was like, very, like, people wouldn't say it. And now it's like a compliment. You're like, cunty. Like, oh, that's true. But, like, you would. You would. Like, yeah. So, I mean, I guess that's also, like, from drag queens, so. Yeah. But I feel like there was a.

Beth

Whole 30 Rock episode where it calls Tina Fey a cunt. And it's like. Like it doesn't. You don't even hear it.

Emma

And it's like. It's the worst thing that you could ever say.

Beth

Yeah.

Emma

Which. Yeah, that's what I mean. That's how they talk about it in the Lady Chatterly's Lover. It's like this word is, like, so verboten that, like, you. Its presence is enough to consider something obscene, even if the sex scenes themselves are not very explicit. So those books are sort of working their way through litigation in the 1950s. And then in 1957, we get the Roth case. So this is about a man who's selling adult and pornographic books. So not works. They are considered literature. Like, they're pretty explicitly pornographic and, like, intended to be written as pornographic. And he's using the mail to advertise his shops. And there's another. There's another that's out of New York and there's another one out of California. And they sort of get combined for the Supreme Court to decide. And this is the first time the Supreme Court considers is obscenity protected by the First Amendment. Before, they've just assumed that it isn't, and now they're actually answering that question, and they decide that it's not. So this is where we get a lot of language about what obscenity is and sort of the fact that we need a definition.

So Justice Brennan writes, all ideas having even the slightest redeeming social importance, unorthodoxity, as controversial ideas, even ideas hateful to the prevailing climate of opinion, have full protection of the guarantees less excludable because they encroach upon the limited area of more important interest. And so that's. The question is like, when. When does something rise to so obscene that it encroaches on this important interest of outlawing obscene material? So they rule that obscene language is not protected. So. But now we get a rule of obscenity beyond the Hicklin test at the highest level of courts. And so this is where we get community standards and the average person elements. So we've abandoned the imagined child finally. And at the Supreme Court level, we now have to think about an average person. So the trial judge instructions from Roth. So at the actual trial level, they say the words of seen, lewd and lascivious as used in the law signify the form of a morality that has relation to sexual impurity and has the tendency to excite lustful thoughts. So now for the first time, we have a definition of obscenity. Then Brennan gets kind of poetical, which is not uncommon in these book like cases about law, like we saw with Woolsey here.

Beth, you could read Brennan sort of getting literary. Yes.

Beth

However, sex and obscenity are not synonymous. Obscene materials is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, for example, in art, literature and scientific works is not itself sufficient reason to deny the material the constitutional protection of freedom of speech. Speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages. It is one of the vital problems of human interest and public concern.

Emma

So he gets poetical about, like, what we need sex in literature. This is important. So the test we actually get from Roth is whether to an average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient interest. So everybody get this phrase prurient interest, which will come back up. This gets defined with a definition of obscenity in the Model Penal Code. And this is just what they use. So a thing is obscene if it's considered as a whole. Is predominant appeal is to the prurient interest, that is a shameful or morbid interest in nudity, sex or excretion. And if it goes substantially beyond the customary limits of candor in description or representation of such matters, they also include the definition from Webster's that I thought was funny because it's very romantic, I thought, for obscenity. So prurient interest and obscenity are the itching, longing, uneasy with desire or longing of persons having itching, morbid or lascivious longings of desire, curiosity, or propensity, lewd. So it's again, like, very poetical description of obscenity. Again, I don't think this is a good definition, but again, finally we have a definition.

And this is just a consistent problem with obscenity jurisprudence. Again, like, your definition of pornography is going to be different than my definition of pornography. And it's happening at the level of federal courts.

Chels

Yeah, it's like your prurient interest is like you're trying to litigate what their interest, like why they're seeking out pornography. Like, is this like an intellectual endeavor? Or as we've been saying, are you gonna jack it? Like, is it? And how do you determine it?

Emma

Feels like they're afraid to say, like, masturbatory aid. I feel like, they're always dancing around that, like, are you using it to jack it? That feels like the question. The court is afraid to say.

Chels

Yeah, it's a. If. Yeah. Anyways, could continue. But it's just so crazy to me because it also reminds me, I think this was like something that was going on on threads that we were complaining about a while ago because someone was trying to be like, what was it they were talking about, like, what makes it why it's bad for some content to be in romance novels. And it's because of. They kept using the word titillation. They're like, it's the purposes of titillation. And I'm like, this sounds really old school.

Emma

You sound old. Yes, it sounds like a 19th century case law. And so, yeah, this, like, we're not able to define it. It's like, does it mean mastubatory aid? Does it mean unsimulated sex? Does it mean something that is like deviant behavior, like gay sex, which is still criminalized in 1957? Which is kind of the implication that I'm getting that somehow this like, deviant criminalized behavior is part of like. If that is depicted, though, we have a way to declare that obscene, but not like sex that promotes the like homogeny. But it's unclear because they're not saying anything. One of the arguments is that courts have been hesitant to define this because we see how a strong definition in Hicklin creates an overly broad suppression of materials. That's one argument, is that we don't want to define it because when we have something so specific, we end up suppressing a lot of things. But also that overly broad or imprecise definition can cut the other way after this definition comes out. That's when we get Grove Press Inc. Actually successfully bringing litigation about Lady Chatterley's Lover. And the appeals court affirms the lower court judgment.

So with this new definition, Lady Chatterly's Lover is not obscene because it does not, taken as a whole, the cunt word is not able to get it to the level obscene. So we do get more. More things are being published after the Roth definition because in that case they find that the sort with a power and literary value sort of outweighs any sort of the level of obscenity present in that book. But immediately courts want to expand the test and have it have something. They would include that literary value in the test. And that's when we, with Miller, where we're going, we're actually going to consider the value of the work. There are A couple of cases to get from Roth to Miller. I wanted to specifically bring up Jacobellis versus Ohio, because I'm sure both of you have probably heard. I know it when I see it. Have you heard this phrase before when it comes to pornography? Yeah, people will bring it. This is another thing I see brought up is that people will act like this is the definition of pornography, that the court has punted it. And they're like, oh, they're not defining pornography.

They're saying, I know it when I see it, and this. But it's not a definition. It's in dicta, which means it's not a holding. It's just something that a judge says laypeople act like. This is the Supreme Court's definition of pornography, and it's not. I think it's a very famous bit of dicta from constitutional law. So it's about the Louis Malle film Les Amants. Louis Mal is. He's a French director who often directs movies that have, like, sort of sex scenes that are potentially unsimulated in them. And the question is whether the Ohio ban showing the film. The state had deemed a scene if it's obscene under Roth. And the Supreme Court reverses the decision and holds that the film is not obscene. But the reason that it's not a precedent is because the Court can't agree on why the film is not obscene. So we get four different opinions from justices explaining why they think it's not obscene. The main opinion, the plurality says, we recognize the legitimate and indeed exited interest of states and localities throughout the nation preventing dissemination of material deemed harmful to children. So we get children. But the interest does not justify a total suppression of such material, the effect of which would be to reduce the population to reading only what is fit for children.

So Brennan is now quoting Leared hand, basically. So he focuses on the quality of the film, and he's like, adults should be able to see this, even if children maybe shouldn't be able to see it. And then we have our First Amendment absolutist, Hugo Black. He says there should be no censorship of any kind under the First Amendment. Hugo Black is an extreme First Amendment guy, Justice Stewart. He's the one who says. He's like, basically, we should only restrict hardcore pornography. And that's where we get the I know it when I see it definition. He says, I shall today attempt further to define the kinds of materials I understand to be embraced within that shorthand description. And perhaps I should never succeed in intelligibly doing so, but I know it when I see it. And the motion picture involved in this case is not that. And he's like, I saw the film. It's not hot enough to be obscene. And so again, it's not actually a ruling. It's just this guy saying like, I know, I know when I see hardcore pornography. And that's not it. Again, they're just saying that this film is not obscene.

They, I've not agreed onto the reason itself. Obscene. And that's where we get further cases. And they keep trying to parse this out, like what, what actually is obscene. Memoirs v. Massachusetts comes in 1968. And this is important because it's a Fanny Hill case. Fanny Hill is what started it all in 1821. Fanny Hill in Massachusetts. This is again the same book in the same state. An uncensored copy of Fanny Hill had already been litigated successfully in 1964. And in that case the judge cites the Profumo affair. Have either of you heard of this scandal in England?

Beth

No.

Emma

It was like a sex scandal where basically all these Conservative PMs, including the Prime Minister, had partied with a 17, 18 year old woman who was like, maybe a prostitute. And it mainly is this huge sex scandal in the 60s about like a conservative government. So this government that was suppressing lots of ideas and like working. That was sort of one of their themes was suppression of obscene material. They come out and there's this scandal. And so the judge in New York cites the fact that like this is happening and this is reported in the news and like that's more scandalous than Fanny Hill. So why as well just publish Fanny Hill? And so they point to the. If the New York Times can publish stuff about the Profumo scandal, people can read Fanny Hill. And then the. So Memoirs versus Massachusetts. This is effectively the end of literary works being considered obscene, though they don't know it at the time. But the opinion weighs Fanny Hill's social value as an independent factor. So it's not just that it outweighs obscenity, it's like we consider social value first, suggesting that the moment that something has any social value, it cannot be obscene.

And so it's a more extreme version of Roth, that the moment something has literary, social, scientific value, it cannot be obscene because that would be suppression. That would be against the First Amendment. What happens with Miller is they walk it back a little bit into a factors test. So Memoirs is the most extreme test that we get. And then they walk it back with SCOTUS and Miller. So now finally we are at the Miller test. This is the test that I explained at the beginning.

Beth

Yes. I'm like, we're back to the introduction. We made it.

Emma

So this is the controlling test for obscenity.

Chels

How many imaginary children did it take for us to get here?

Emma

I know all those children like reading books that maybe had the word cunt in them. We had to protect them, and now we can't because of the Miller test.

Chels

Thanks a lot, Miller.

Emma

Again, this is a test that effectively protects literary works. But the thing that's underneath it is someone who's selling pornography, which, again, I think the silo that we try to make between literature and porn only harms everyone, basically. You can't separate them because the courts are not separating them. Marvin Miller is prosecuted for mailing advertisements for books called Intercourse, Man, Woman, Sex, Orgies Illustrated and An Illustrated History of Pornography. So books that are intended to be porn pretty explicitly. And also a film called Marital Intercourse, which is a kind of funny name for kind of sweet.

Chels

It's like, don't worry, they're married. This is sanctioned in a church. Thank you.

Emma

So he appeals his conviction and SCOTUS affirms it. So he is prosecuted and charged with obscenity. But they put forth a new test. So again, this is. They're throwing porn under the bus to protect literature. Which, again, is a theme. We shouldn't do this, but it's different from the Roth standard. This standard, it'll sound a little bit like Roth, but like I said before, whether the average person applying contemporary community standards would find that the work taken as a whole appeals to pruning interest. Whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law, and whether the work taken as a whole lacks serious literary, artistic, political or scientific value. So the new elements here are patently offensive. So there has to be something like, they use the word gross sometimes, but like it's. It's something that is extreme. So, like, violence is one way that upset things still get obscene. Like if it's sex combined with violence or bestiality is another one that is still subject to obscenity prosecutions. And they leave the states to define that. So states gets defined what is patently offensive.

And then they have the SLAPS values, which are the serious literary, literary, artistic, political or scientific value. They abbreviate it as slaps, which again, is kind of kinky. Like, as far as. Like, this book slaps.

Chels

And you say this book slaps and it means it has no porn. What right.

Emma

So that's the test we have. The one change that happens is that in 1987, instead of looking at community values for the slaps values, they now look at the reasonable person. So you can't look in Boston and be have Boston people think, well in Boston this doesn't have any literary value. You have to look at like a reasonable person.

That kind of feels like the implication. And that's it, that's, that's the obscenity standard for the United States. And this hasn't changed since 1987. And what's happened since then is that printed work, literature work, has not really been prosecuted over this. There have been cases about the Internet establishing that the Internet is more like books than radio. So the Internet is like a free speech zone. The ACLU was involved in that in 1997, where they have heightened free speech protections opposed to the Internet, like the radio or tv where you like can't say curse words. And some legal scholars basically argue that obscenity prosecutions for literature effectively ended in the 1970s and 80s with these rulings. They're fairly rare federal prosecutions that now focus on visual pornography that's extreme in its violence. Like I said, occasionally written materials with other non protected speech like bestiality or child pornography, like, so those, those prosecutions tend to be with other prosecutions like it'll sort of like adding onto if there's written materials accompanying the visual pornography.

And then state prosecutions under obscenity laws tend to be brick and mortar establishments like sex toy stores or places that sell like video porn, which also I think has fallen out of the by the wayside just because there aren't that many of those anymore. But that's where the line of cases for obscenity goes. And so now I think we can think of that as like an ending in 1987. But where I want to talk about now is that this is not how like all those cases is not how book banning happens now. And so before we move on to book banning and sort of like by coda of like what this has to do with how people talk about it now, does anyone have any thoughts about obscenity or the law or like you have any prescriptive thoughts about how you think it should change as like people who now know about the case law?

Beth

I mean I kind of. This is a lot of information.

Chels

Yeah, I think it's like we should be we instead of an imaginary child, it should be an imaginary first grade class. So if all of the first graders find this material objectionable and they, like, take a vote on it, then we can just. Something a little bit more crazy, I. Think,

Emma

Get rid of your trial by peers and just. Trial by first graders.

Chels

Trial by first. Yeah, that's it. Apparently there are intellectual peers, so they might as well.

Emma

Yeah, I mean, I think with obscenity, I think the confusing thing about this thing is that the obscenity, it still feels unfinished to me, but it's not been changed since 1987. I think that's one of the frustrating things about obscenity law is that people want it to be definitive. They want. And so I see the conflation of pornography and obscenity, that they'll say, like, pornography is. Is obscene. And so we talk about Miller, but I want to be careful that with romance readers or talking about anything being obscene, because obscenity, as it stands right now, is not protected speech. And so you want to argue that things are not obscene. And I think you have to remember that there's the legal term obscenity, and then also our intuition of what the word obscenity means. And they're two different things. And so when you try to cut between, like, romance and porn and say, like, porn, what makes something porn is that it is obscene, you're actually pushing it really far on the extreme of, like. Because, again, things are not really prosecuted for obscenity anymore, except for, like, extreme examples of, like, high volume. And also, like, coupled with some sort of other crime, you're, like, slicing the knife in a way that is not actually helpful to anyone.

This sort of conflation of the legal standard of obscenity and like, our natural sort of understanding of the word is what happens in book banning. And I think this is why people think obscenity has something to do with book banning or that case law does, because people who are banning books will use the word obscene, but they cannot mean the legal definition of it because the legal definition of it is too far for what they're doing. Like, the controlling case for book banning is actually this case. Board of Education, Island Trees Union Free School District versus Is Pico, or just called Pico. And this is where the SCOTUS said that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to, quote, prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. But this isn't binding because it's a plurality. And so it's like guidance. And so that's one of the problems with book banning cases is that this is just what they look to as like, you're not gonna. If you don't follow this rule, you're not gonna get immediately appealed, which is how it works with binding stuff.

Beth

You have, you have explained a plurality to me before. Can you explain it again? Like, you say it's not binding because it's a plurality. Like, they didn't. Pat.

Emma

They just asked an opinion in a plurality. That means that not enough judges reached a majority. And so they agree on the result of this case. They're telling you, they're telling the people in this.

Beth

They're limiting the scope. They're like, just this one case.

Emma

They're saying, for this case, the result is this, then this is what you need to do. It's often they're giving instructions to the lower court of like, this is how you resolve the problem. But because it's a plurality, they can't agree to the reasoning of why they're telling the lower court what to do. And so because they can't agree to their legal reasoning, it's not legal reasoning that can be followed in other situations.

Beth

Right.

Emma

So the plurality is the. Most judges agree on this reasoning, but it's not binding. And so other courts don't have to follow it. And what I mean by don't have to follow it is that they don't have to. If they don't follow it, they're not going to immediately get appealed and then lose. Like, they. It's guidance. And so you want to follow it because the idea is that, like, if it goes up to the Supreme Court again, they may come out the same way, but it's not. It's not binding. It's guidance for the future. It's not the law for the future. If that makes sense.

Beth

Yes, it does make sense because you. With the dicta. That was what happened there. It was like this specific thing, but it's not like binding.

Emma

Right. Like, the lower courts don't have to follow it. The standard for book banning relies heavily on the determination of motivation for removal. And this, and motive, famously, for all cases, is a very hard evidentiary standard. It's very hard to prove someone's motive for something.

Beth

Yeah.

Emma

So how these things intersect is that the removal of books may borrow language from the Miller test. So I've seen Greg Abbott use the words like patently offensive, obscene, prurient interest, but he's not applying the Miller test. He's just using that language to invoke a obscenity. They're barring this.

Beth

Greg Abbott Is the governor of Texas.

Emma

Governor of Texas. Texas, Florida, I think are the two worst book banning states, but it's happening ever. I mean, Pennsylvania also has some counties that do a lot of book banning. So, like, bad faith actors will bring up obscenity, book banning situations, and they will sort of invoke this legal tract of obscenity that's been really narrowed, that doesn't actually apply to these situations. And so this is where I ultimately get frustrated, is that you're. If you bring up Miller in book banning situations, if you bring up this test, you're basically meeting people where they are in bad faith. And I don't think people even necessarily realize that when book banners use these words for Miller, they're using words that are not appropriate legally for the situation and also are not the legal standard that they're applying and getting books removed. So you're meeting them where they are rather than meeting them where you could actually fight them, because they're talking about the legal standard of obscenity. But the book banners are not having queer stories ruled obscene. That's not how they're getting them removed. From some schools, it's basically de facto censorship. Is what's happening is that these books are being removed and the litigation is too.

It's too hard to fight all these different little instances, these little pockets at a baseline or as a holistic thing. And so it's not happening at the Supreme Court level, it's happening at the school board level. And so you're citing something that's from the Supreme Court when the fight is actually happening on a much more like municipal level. And so the mechanisms and procedures and standards and also how to resist them through community action are often specific to the community. Like the way that book bans are requested, like that procedure is very specific to a community. What titles are being focused on is very specific to a community. It's easier to talk about Miller and obscenity laws because it's the same across the country. And it's significantly less opaque than the bureaucracy of a municipal school school board. And so you can talk about Miller and feel like you're aiding to the conversation of book banning, but it's not actually the mechanism that book banning is happening. So I think the history that we've talked about is most useful because we can see echoes of how books that we now consider classics are pretty tepid, were talked about in books that are now lightning rods for controversy.

And like nothing is new in our clutching of our pearls and over the sexual content of books. But the method of censorship has changed substantially. And so I think the method of resistance has to be different, too. And so as we keep talking about obscenity, we're not really meeting people where they're doing the censorship.

Beth

Yes. Good job, Emma.

Emma

Yeah. Any other questions or additional thoughts about obscenity? This was a lot of law. This is probably definitely our most legal episode yet. Yes.

Beth

I feel very proud that I felt like I understood most of it, although asking to repeat it would be difficult, I think. But I like what you're saying. Like, you're trying. We shouldn't be meeting book banners where they're at. I feel like there's this reaction in romance community, like, we talked about the beginning to divide ourselves from pornography, and that's just like a losing game. Like, you're. I feel like I read this article a little while ago where it was talking about how it was about, like, I can't remember what it was about, but it was like. Like, if you have queer books, sometimes you want a. More like, you don't want as explicit of a cover, like, you know, two men kissing or something you'd want so that, like, it doesn't get caught in the book Banner's Net. And I'm like, I don't know if this is the line we should be taking. Like, that's not gonna stop them, right?

Emma

Yeah, it doesn't. It's just. It's not. It's not. It's not how book banning works. And I think I. So one of the things I want to put in the resources is a few different, like, resistance to book banning guides. And the emphasis throughout these is, like, specific community action. It's like, you have to be familiar with, like, how your school board is banning books because the procedures are different all over the place. And also, like, what books are being called up are different in different communities. And so, because what happens is it's not blanket bans on, like, queer books or books with sex. It's specific books get removed. And they become flashpoints for these lobbying groups like Moms of Liberty. They put out lists of. These are the books that we want to get banned. And so people will file all these forms and say, like, these are books I want removed from the library.

Chels

Isn't Genderqueer like, one of the most banned books? That's something that I think is kind of like. I guess maybe not, like, not frustrating because I get where it's coming from, but, like, something that I. I've noticed in romance spaces is that there's kind of like, this tendency to act like Julia Quinn is going to be the next one to get. And that's not coming from nowhere because I have seen, like, I think in Florida, some people contested some Nora Roberts books. So it does happen. But most of the time it's books that are appropriate and directed towards. Not most of the time, but a lot of times there's books that are appropriate and directed towards children to, like, talk to them about their bodies or queerness or race or something like that. And so I think kind of sometimes I feel like there's a very white woman. They're coming for our romance nerd. And I'm like. I'm like, you gotta understand, like, this is like a community thing that we gotta watch out for everybody. Because. And the specific way we talk about romance in that is like, yes, it's important for romance, it's important for pornography, but it's also, like, a lot of the times it's not even.

So when we're. We're like, haggling, like, as you mentioned, like, when we're haggling over the definition of obscenity, like, why is genderqueer obscene? Like, you know what I mean? It's like, it's. Because the concept is. It's political. The concept is obscene to these people. So it does feel kind of. It just. It feels like you're just like spinning cartwheels in a corner instead of kind of keeping your eye on the ball sometimes when. The way that. That romance sometimes talks about it. And I. And I don't want to diminish people who are concerned about, like, the. Because I. It should concern everybody and it should

But. And, and, and it is true. Like, you know, Nora Roberts can get banned. Anything can get banned.

It just. I do. I do kind of want to, like, hone the focus in, like, it's queer people and people of color are the main targets for this.

Emma

Yeah. And I guess what I see people who I think are trying to argue in good faith is that they will pick something like Nora Roberts or Julia Quinn and be like, here are all the reasons why it's not obscene. Here are all the reasons why it shouldn't be banned. And it sometimes feel like what they're doing, either explicitly or implicitly, is like, I'm going to defend this, like, white, straight romance from these rules. And the implication is maybe that, like, there is some imagined romance or book that I think would be appropriate to be banned. This is not it. This book is. Okay. And it's like, what you should, what you should be doing is like, actually realizing that all these book banners are acting in bad faith. There's not, there's not an imagined child that they're actually concerned with. What they're concerned with is the political nature of queer speech. That's what they're trying to suppress. And so it's like. And that's again, one of the lessons we can learn from this obscenity. Like history, even though it's not currently the law that is being applied, is that it's always in bad faith.

There is, there is no, like, actual concern for, like, overexposure to sex for children. It's always connected to political speech. So many of those examples that we talked about, the reason that those books are singled out is because they were somehow non hegemonic. That they were disrupting something. They were queer like Leaves of Grass. Or that Fanny Hill ends up, like, not really caring that she's had a lot of sex. She doesn't die at the end of the book. Those are the things that get these books targeted. And so, like, don't, don't, don't carve out your exception. Don't think that, like, oh, well, like, if I can prove to them that Julia Quinn is safe, I'll be safe. It's like that you. Or that's not. You're adopting bad faith positions. And again, like, meeting them where they are rather than defending things. But people will throw books under the bus all the time. Like, I mean, I think, like, Icebreaker is the one that, like, people brought up to me all the time. They're like, well, like, they're like, well, obviously Icebreaker is not appropriate for children. And Icebreaker is a very hegemonic romance. Like, I mean, it is, it is two people, two white kids who have sex.

I mean, they're, they're in college and they end up having a baby and getting married at the end of the book. And they're like, this is. This is, this is the line. This is the line. It's like, oh, I don't, I don't know what the line is. Like, I, I'm not, I'm not every child and every parent. I'm not every, Like, I don't know. And that's the thing where this impulse to think that there's a line that bad faith actors will be satisfied with is a faulty premise.

Chels

Yeah. And I also just want to point out that this is kind of tangential. Right. But it's something that I want folks to kind of notice. This language on social media more because it's really popular and I feel like it's really insidious is like when people are talking about parts of romance, like types of romance novels that, that they don't like. They'll, they'll, they'll just be like, I'm just asking questions, like, just where's the line? Like, why, why is this? Like, why are we okay with this? Like, why does. And I, I, that is a very conservative thing. Like, they always frame it as very liberal, where it's just like these books are unethical and bad and they're teaching us bad things. You know, like, it's a dark romance or it's, or it's something that's just not like, you know, the, the. It's a Fanny Hill situation where she doesn't learn her lesson or something like that. And I think it's like, what else Love? And, but, but I, I see this all the time where they're, we're just throwing out this just like, I'm just asking questions like, dark romance, what is it? What is it good for?

What is it good for? And I feel like I'm always defending. I, I don't, I don't really read dark romance. I think, I don't think bodice rippers are very similar to dark romance at all. But I, I'm, I, I am, I am much more aligned with, with dark romance readers than I am for people who push these sensorial thoughts out into the public and try to make it more mainstream, try to make it fiction is, is fiction. It should be protected. It should be the. Where you're asking like, I'm just asking questions. Where is the line? What is your I. Everybody is picking up what you're putting down, and it's not cute.

Beth

Yeah, it's kind of again, what I was saying earlier about, you know, again, the imagined woman, what is she going to, like, this imagined reader, what are they going to learn from dark romance, you know? Or what does it say about the author? That's another line that makes me a little nervous.

Chels

So common. Yeah.

Beth

Yeah.

Emma

Like we're going to uncover something insidious about this author that they're, yeah.

Beth

Like they're writing about this. Like, what are, you know, what must they be like? I'm like, this is bad. Bad.

Emma

Yeah. Actually, that's something I don't see that. I don't know if that is new or like, it's not present in the case law. That actually something that I feel like does not come up like this implication that the authors are. Yeah, because actually, the people who get prosecuted most often in these obscenity cases are the publishers rather than the authors. It's. I mean, suppression of the author's speech. But, I mean, I don't. There may be cases where the authors get fined or prosecuted, but really it's publishers. But I don't know if that's new or just like, not present in the case. Like. But I was thinking about, like, the dark romance thing. I think we see that with dark romance, but then also people who will do that with dark romance will then get upset when people do it with sex scenes at large. And it's like, these are the same thing. Like, they're. Because also people will do, like, just asking questions like, why do there have to be so many sex scenes? And it's like, that is, like, more central than the dark romance. More extreme opinion. But people. People who will accept the dark romance just asking questions will then get mad about the just asking questions for sex scenes.

It's like they are all part of the same bad faith impulse. I didn't.

Chels

What is it that, I didn't know the leopard eating party would be my face?

Emma

Yeah. I think people who read romance need to be aware that, like, they're not just because you read romance which sort of brands itself as, like, a bastion of free expression or liberal thought. It's like, you're not immune from, like, the conservative impulses that are around us constantly and have been on an uptick since 2021. And I guess I want to be explicit with that, is that the book banning that we're experiencing right now is also, like, at a fever pitch. Like the ALA and Pen America post Covid especially. Like, that seems like the sort of same thing that has radicalized a lot of people. That sort of moment in our time is what's radicalizing and pushing this extreme lobbying towards book banning. We were fighting a different beast in the last four years than we did in the 80s under Reagan, where there was a lot of books banning. Like, it is a different mechanism, it is a different power. And, like, there's a lot more, like, manpower behind it. And so, again, like, if you're. If you're thinking about book banning, what I grew up going to libraries that had banned book weeks, which is a banned book week from ALA came out of, like, Reagan book banning.

But again, celebrating banned books through the 80s and 90s and even the 2000s is. It's different. We're fighting a different battle starting in 2021 than we did even growing up. And I think especially I don't have kids in schools and so I'm not as connected to the school districts than I was when I was a child in schools. But it's a different mechanism and I think people need to be aware of that. You can't just talk about banned books the way that we talked about them in the 80s and 90s. Okay. So, well, thank you for letting me rant about the law. Hopefully this was interesting to people.

Chels

Thank you for protecting the children.

Emma

Protecting the children. That's what we need to the like end goal is like protect our imaginary.

Chels

Children from welcome to Reformed Rakes. We'll throw that child under a bus.

Emma

Yeah. Protect them. Yeah. Imagine child Anything could happen to them at any time because they're fictional, which is dangerous.

Chels

Imagine that child with its floaties on in a padded room. They'll be fine.

Emma

Like, and they get a copy of Leaves of Grass. They become gay.

Chels

They're going to be gay and they're going to be really sad.

Emma

Our depressed, gay, imagined child. That's what Comsoack was trying to prevent.

Chels

I still lived, bitch.

Emma

Thank you so much for listening to Reformed Breaks. If you like bonus content, we can subscribe to our patreon@patreon.com reformed breaks. You can follow us on Twitter bluesky and Instagram for show updates. The username for those platforms is at Reformed Breaks or emails@reformedbrakesmail.com we love to hear from our listeners. Please rate and review us on Apple and Spotify. It helps a lot. Thank you again and we'll see you next time.