1911 Encyclopædia Britannica/Obscenity
OBSCENITY (from the adjective “obscene,” Lat. obscenus, evil-looking, filthy). By English law it is an indictable misdemeanour to show an obscene exhibition or to publish any obscene matter, whether it be in writing or by pictures, effigy or otherwise. The precise meaning of “obscene” is, however, decidedly ambiguous. It has been defined as “something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd.” But the test of criminality as accepted in England and Canada is whether the exhibition or matter complained of tends to deprave and corrupt those whose minds are open to immoral influences and who are likely to visit the exhibition, or to see the matter published. If the exhibition or publication is calculated to have this effect, the motive of the publisher or exhibitor is immaterial. Even in the case of judicial proceedings, newspapers are not privileged to publish evidence which falls within the definition. In dealing with writings alleged to be obscene, the court and jury have to consider the effect of the whole work and not merely the particular extract challenged as improper; and in practice it is difficult to induce juries to convict the publishers of well-known and old-established works of real literary quality on the ground that they contain passages offensive to modern notions of propriety. In the case of exhibitions of sculpture and pictures some difficulty is found in drawing the line between representations of the nude and works which fall within the definition above stated—a difficulty raised in a somewhat acute form before the London County Council in 1907 by theatrical representations of “living statuary.”
Besides the remedy by indictment there are statutory provisions for punishing as vagabonds persons Who expose to public view in public streets or adjacent premises obscene prints, pictures or other indecent exhibitions. These are supplemented by similar provisions, applicable to the metropolis and to county towns, and (by a statute of 1889) for suppressing certain kinds of indecent advertisements. By an act of 1857 powers are given for searching premises on which obscene books, &c., are kept for sale, distribution, &c., and for ordering. their destruction, and the post office authorities have power to seize postal packets containing such matter and to prosecute the sender. In 1906 the London publisher of a weekly comic paper was punished for inserting advertisements inviting readers to acquire by post from abroad matter of this kind.
The use of obscene or indecent language in public places is punishable as a misdemeanour at common law, but it is usually dealt with summarily, under the Metropolitan Police Act 1839, or the Town Police Clauses Act 1847, or under local by-laws.
British Possessions.—In British India obscene publications, exhibitions, &c., are punished under articles 292, 293 and 294 of the Penal Code. Special exception is made for representations in temples or on cars used for conveyance of idols or kept or used for religious purposes. In those British possessions whose law is based on the common law the offences above dealt with are offences at common law or under colonial statutes embodying the common law, e.g. Queensland Code, 1899, ss. 172, 227, 228, 374 (3); Western Australian Code, 1901, ss. 203, 204, 352 (3); Canadian Criminal Code, s. 179. In New South Wales and Western Australia, by acts of 1901 and 1902, provisions have been made for dealing summarily with indecent and obscene publications based to some extent on the English legislation of 1889 against indecent advertisements. In the Colonial acts no penalty is incurred if the defence can prove that the incriminated publication is a work of recognized literary merit, e.g. Aristophanes or Boccaccio’s Decameron, or is a bona-fide medical work circulated in the manner permitted by the statutes.
United States.—Under the Federal Law (Revised Statutes, s. 3893) penalties are imposed for transmitting obscene matter by the U.S. mails; see U.S. v. Wales (1892), 51 Fed. Rep. 41. (W. F. C.)