Can a book, videotape or other expressive material be considered obscene on the basis of one particular passage or scene?

Friday, November 15, 2002

No, the work must be considered as a whole in determining whether it has serious value. In the Court’s 2002 decision in Ashcroft v. Free Speech Coalition, Justice Anthony Kennedy wrote that this was an “essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene.”

Until the mid-20th century, many American courts did find that a single sexually explicit passage in a book could make the material obscene. These courts relied on the Hicklin rule, developed from a 19th century English case, Regina v. Hicklin. Under the Hicklin test, obscenity could be found based on even one isolated passage. The test asked “whether the tendency of the matter … is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”