Swearingen v. United States (1896)
The words “obscene,” “lewd” and “lascivious,” as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prosecutions for obscene libel.[i]
United States v. Kennerley (1913)
I hope it is not improper for me to say that the rule as laid down [in Hicklin], however consonant it may be with mid-Victorian morals, does not seem to me to answer to the understanding and morality of the present time, as conveyed by the words, “obscene, lewd, or lascivious.”[ii]
If there be no abstract definition, such as I have suggested, should not the word “obscene” be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now?[iii]
To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy.[iv]
Anderson v. Patten, Postmaster (1917)
Few would, I suppose, doubt that some prevention of the mailing of lewd publications is desirable, and yet no field of administration requires better judgment or more circumspection to avoid interference with a justifiable freedom of expression and literary development.[v]
I have little doubt that numerous really great writings would come under the ban, if tests that are frequently current were applied, and these approved publications doubtless at times escape only because they come within the term “classics,” which means, for the purpose of the application of the statute, that they are ordinarily immune from interference, because they have the sanction of age and fame, and usually appeal to a comparatively limited number of readers. It is very easy, by a narrow and prudish construction of the statute, to suppress literature of permanent merit.[vi]
Halsey v. The New York Society for the Suppression of Vice (1922)
No work may be judged from a selection of such paragraphs alone. Printed by themselves they might, as a matter of law, come within the prohibition of the statute. So might a similar selection from Aristophanes or Chaucer or Boccaccio or even from the Bible. The book, however, must be considered broadly as a whole.[vii]
United States v. Dennett (1930)
An accurate exposition of the relevant facts of the sex side of life in decent language and in manifestly serious and disinterested spirit cannot ordinarily be regarded as obscene.[viii]
United States v. One Obscene Book Entitled “Married Love” (1931)
In Murray’s Oxford English Dictionary the word “obscene” is defined as follows:
“Obscene—1. Offensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome. Now somewhat arch.
“2. Offensive to modesty or decency; expressing or suggesting unchaste or lustful ideas; impure, indecent, lewd.”[ix]
United States v. One Book Called “Ulysses” (1933)
The meaning of the word “obscene” as legally defined by the courts is: Tending to stir the sex impulses or to lead to sexually impure and lustful thoughts. Whether a particular book would tend to excite such impulses and thoughts must be tested by the court’s opinion as to its effect on a person with average sex instincts—what the French would call l’homme moyen sensuel—who plays, in this branch of legal inquiry, the same role of hypothetical reagent as does the “reasonable man” in the law of torts and “the man learned in the art” on questions of invention in patent law.[x]
United States v. One Book Entitled “Ulysses” (1934)
It is settled, at least so far as this court is concerned, that works of physiology, medicine, science, and sex instruction are not within the statute, though to some extent and among some persons they may tend to promote lustful thoughts. We think the same immunity should apply to literature as to science, where the presentation, when viewed objectively, is sincere, and the erotic matter is not introduced to promote lust and does not furnish the dominant note of the publication. The question in each case is whether a publication taken as a whole has a libidinous effect.[xi]
Parmelee v. United States (1940)
Probably the fundamental reason why the word obscene is not susceptible of exact definition is that such intangible moral concepts as it purports to connote, vary in meaning from one period to another. It is customary to see, now, in the daily newspapers and in the magazines, pictures of modeled male and female underwear which might have been shocking to readers of an earlier era. An age accustomed to the elaborate bathing costumes of forty years ago might have considered obscene the present-day beach costume of halters and trunks. But it is also true that the present age might regard those of 1900 as even more obscene.[xii]
Commonwealth v. Isenstadt (1945)
A book is “obscene, indecent or impure” within the statutory prohibition if it has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desire. It also violates the statute if it “manifestly tends to corrupt the morals of youth.”[xiii]
Commonwealth v. Gordon (1949)
I assume that “obscenity” is expected to have a familiar and inherent meaning, both as to what it is and as to what it does. It is my purpose to show that it has no such inherent meaning; that different meanings given to it at different times are not constant, either historically or legally; that it is not constitutionally indictable unless it takes the form of sexual impurity, i.e. “dirt for dirt’s sake” and can be traced to actual criminal behavior, either actual or demonstrably imminent.[xiv]
A book cannot be a present danger unless its reader closes it, lays it aside, and transmutes its erotic allurement into overt action. That such action must inevitably follow as a direct consequence of reading the book does not bear analysis, nor is it borne out by general human experience; too much can intervene and too many diversions take place.[xv]
Attorney General v. The Book Named “God’s Little Acre” (1950)
Viewing the book as a whole we find ourselves unable to agree with the conclusion of the trial judge that the book was not obscene, indecent, or impure as those words have been defined in our decisions. The book abounds in sexual episodes and some are portrayed with an abundance of realistic detail. In some instances the author’s treatment of sexual relations descends to outright pornography. Nothing would be gained by spreading these portions of the book on the pages of this opinion.[xvi]
[i] Swearingen, 161 U.S. at 451.
[ii] Kennerley, 209 F. at 121.
[iii] Ibid., at 122.
[v] Anderson, 247 F. at 384.
[vii] Halsey, 234 N.Y. at 4.
[viii] Dennett, 39 F.2d at 569.
[ix] One Obscene Book Entitled “Married Love,” 48 F.2d at 823.
[x] One Book Called “Ulysses,” 5 F. Supp. at 184.
[xi] One Book Entitled “Ulysses,” 72 F.2d at 707.
[xii] Parmelee, 113 F.2d at 731-32.
[xiii] Isenstadt, 318 Mass. at 549-50.
[xiv] Gordon, 66 Pa. D.&C. at 104.
[xv] Ibid., at 153.
[xvi] The Book Named “God’s Little Acre,” 326 Mass. at 283-84.