Hicklin Test - The Hicklin Test in The United States

The Hicklin Test in The United States

Adoption of obscenity laws in the United States was largely due to the efforts of Anthony Comstock. Comstock's intense lobbying led to the passage in 1873 of an anti-obscenity statute known as the Comstock Act. Comstock was appointed postal inspector to enforce the new law. Twenty-four states passed similar prohibitions on materials distributed within the states. The law criminalized not only sexually explicit material, but also material dealing with birth control and abortion. Although lower courts in the U.S. had used the Hicklin standard sporadically since 1868, it was not until 1879, when prominent federal judge Samuel Blatchford upheld the obscenity conviction of D. M. Bennett using Hicklin, that the constitutionality of the Comstock Law became firmly established. In 1896, the Supreme Court in Rosen v. United States, 161 U.S. 29 (1896), adopted the Hicklin test as the appropriate test of obscenity.

However, in 1957, the Supreme Court ruled in Roth v. United States, 354 U.S. 476 (1957) that the Hicklin test was inappropriate. In Roth, Justice Brennan, writing for the majority, noted that some American courts had adopted the Hicklin standard, but that later decisions more commonly relied upon the question of "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." This Roth test became essentially the new definition of obscenity in the United States.