Application of The Act
The Act did not define "obscene", leaving it to the courts to devise a test, based on the common law.
Regina v. Hicklin was heard in 1868 and involved one Henry Scott, who resold copies of an anti-Catholic pamphlet entitled "The Confessional Unmasked: shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession." When the pamphlets were ordered destroyed as obscene, Scott appealed the order to the court of Quarter Sessions. Benjamin Hicklin, a London magistrate who was in charge of such orders as Recorder, revoked the order of destruction. Hicklin held that Scott's purpose had not been to corrupt public morals but to expose problems within the Catholic Church; hence, Scott's intention was innocent. The authorities appealed Hicklin's reversal, bringing the case to the consideration of the Court of Queen's Bench.
Chief Justice Cockburn, Campbell's successor as Lord Chief Justice, reinstated the order of the lower court, holding that Scott's intention was immaterial if the publication was obscene in fact. Justice Cockburn reasoned that the Obscene Publications Act allowed banning of a publication if it had a "tendency ... to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." This test became known as the Hicklin test and allowed portions of a suspect work to be judged independently of context. If any portion of a work was deemed obscene, the entire work could be outlawed.
This interpretation was clearly a major change from Campbell's opinion only ten years before — the test now being the effect on someone open to corruption who obtained a copy, not whether the material was intended to corrupt or offend.
Cockburn's declaration remained in force for several decades, and most of the high profile seizures under the Act relied on this interpretation.
Read more about this topic: Obscene Publications Act 1857
Famous quotes containing the words application of the, application of, application and/or act:
“It is known that Whistler when asked how long it took him to paint one of his “nocturnes” answered: “All of my life.” With the same rigor he could have said that all of the centuries that preceded the moment when he painted were necessary. From that correct application of the law of causality it follows that the slightest event presupposes the inconceivable universe and, conversely, that the universe needs even the slightest of events.”
—Jorge Luis Borges (1899–1986)
“Courage is resistance to fear, mastery of fear—not absence of fear. Except a creature be part coward it is not a compliment to say it is brave; it is merely a loose application of the word. Consider the flea!—incomparably the bravest of all the creatures of God, if ignorance of fear were courage.”
—Mark Twain [Samuel Langhorne Clemens] (1835–1910)
“It would be disingenuous, however, not to point out that some things are considered as morally certain, that is, as having sufficient certainty for application to ordinary life, even though they may be uncertain in relation to the absolute power of God.”
—René Descartes (1596–1650)
“Adolescents may be, almost simultaneously, overconfident and riddled with fear. They are afraid of their overpowering feelings, of losing control, of helplessness, of failure. Sometimes they act bold, to counteract their imperious yearnings to remain children. They are impulsive, impetuous, moody, disagreeable, overdemanding, underappreciative. If you don’t understand them, remember, they don’t understand themselves most of the time.”
—Stella Chess (20th century)