Regina v Hicklin (1868)
Case Brief: Regina v Hicklin (1868)
Court: Queen’s Bench (England)
Year: 1868
Legal Area: Criminal Law — Obscenity, Publication, Definition of Obscenity
Facts:
The defendant, Henry Scott Hicklin, was charged with publishing an obscene pamphlet titled "The Confessional Unmasked".
The pamphlet was intended to expose the corrupt practices of the Catholic Church, but it contained explicit descriptions of immoral acts.
Under the Obscene Publications Act (which came later but was influenced by this case), the publication of obscene materials was criminalized.
The main question before the court was: What constitutes "obscenity" in law?
Issue:
How should the law define obscenity?
What is the test to determine whether a publication is obscene?
Does the intention behind publishing or the effect on readers determine obscenity?
Judgment:
Lord Chief Justice Cockburn delivered the judgment.
The Court held that the test of obscenity is whether the material has the "tendency to deprave and corrupt those whose minds are open to such immoral influences."
This became known as the “Hicklin Test” for obscenity.
Key Points of the Hicklin Test:
Effect on the most susceptible persons:
The test focuses on the effect of the material on vulnerable or impressionable members of society, such as children or people "open to immoral influences."
Isolated passages can be taken:
The court can consider even isolated parts of the publication, not just the work as a whole.
Tendency to deprave and corrupt:
The material will be considered obscene if it tends to deprave and corrupt the morals of such persons.
Intent and artistic merit ignored:
The intent of the author or artistic value was not considered relevant under this test.
Legal Principle Established:
The Hicklin Test became the dominant legal standard for determining obscenity for nearly a century.
It emphasized the potential harmful effect on the most vulnerable rather than the general public.
The test was broad and stringent, often used to censor and ban literary and artistic works.
Significance:
The Hicklin Test shaped obscenity law in England, the United States, and other common law jurisdictions.
It was the foundation for the Obscene Publications Act 1959 in the UK and influenced U.S. obscenity law until the mid-20th century.
The test was criticized for being too restrictive and subjective, leading to suppression of literary and artistic freedom.
Subsequent Developments:
The Hicklin Test was eventually replaced by more liberal standards:
In the UK, the Obscene Publications Act, 1959 introduced the "public good" defense and considered the work as a whole.
In the U.S., the Roth v United States (1957) and later Miller v California (1973) cases replaced Hicklin with tests focusing on community standards and serious literary, artistic, political or scientific value.
However, the Hicklin Test remains a historically important milestone in the development of obscenity law.
Summary Table:
| Aspect | Details |
|---|---|
| Case Name | Regina v Hicklin |
| Year | 1868 |
| Court | Queen’s Bench (England) |
| Legal Area | Criminal Law — Obscenity |
| Legal Test Established | Hicklin Test: Whether material tends to deprave and corrupt vulnerable minds |
| Key Principle | Focus on effect on susceptible persons, isolated passages relevant |
| Impact | Dominant obscenity test for nearly 100 years; basis for censorship laws |
| Criticism | Too broad, led to censorship and suppression of freedom of expression |
Conclusion:
Regina v Hicklin set the benchmark for defining obscenity for many years with a focus on protecting vulnerable individuals from corrupting influences. While later replaced by more nuanced tests, the Hicklin Test remains a foundational case illustrating early legal approaches to regulating morality and expression.
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