History: Getting obscenity on the books
Perhaps the first real case concerning obscenity was Commonwealth of Pennsylvania vs. Sharpless and Others, decided in December 1815. In that case, the Commonwealth claimed that Jesse Sharpless of Philadelphia “unlawfully, wickedly, and scandalously did exhibit, and show for money, to persons, to the inquest aforesaid unknown, a certain lewd, wicked, scandalous, infamous, and obscene painting, representing a man in an obscene, impudent, and indecent posture with a woman, to the manifest corruption and subversion of youth, and other citizens of this commonwealth” (Ernst, Schwartz 12-13). Interestingly, the picture in question did not become part of the court record, out of “respect to the chastity of our records” (14).
The judge ruled that “there is no act punishing the offence charged against these offenders, and therefore the case must be decided upon the judge-made principles. That actions against PUBLIC DECENCY were always crimes, as tending to corrupt the public morals, I can have no doubt” (13). Sharpless and his cronies were convicted.
The first literary obscenity case in the U.S. , however, involved the Scotsman John Cleland's Memoirs of a Woman of Pleasure, widely known as Fanny Hill. The book had been originally published in England in 1749, but resulted in a bookseller's imprisonment there in 1762 (Lewis 217). From then on it was circulated secretly. Peter Holmes attempted to publish the book in the U.S. but was accused in 1821 of trying to “debauch and corrupt, an to raise and create in [citizens'] minds inordinate and lustful desires, knowingly, unlawfully, wickedly, maliciously, and scandalously” (Ernst, Schwartz 16). The court also deemed Fanny Hill too obscene to be included in its records. Holmes appealed the resulting conviction on the grounds that the jury did not review the object in question. His appeal, however, was lost when Chief Judge Parker declared that “It can never be required that an obscene book and picture should be displayed upon the records of the court: which must be done, if the description in these charges is insufficient. This would be to require that the public itself should give permanency and notoriety to indecency, in order to punish it” (16).
Both the Sharpless and Fanny Hill cases were adjudicated under common law, “a body of prior judge-made decisions that serve as precedents for future cases” (17). Statutes to regulate or ban obscenity had yet to be put on the books. Vermont, Connecticut and Massachusetts added such laws in the mid 1830s. The only legislative body that could regulate international commerce, however, was the federal government, and it added to Customs Law a reference to obscene pictorial art in 1842. Section 28 read:
But who would review such matter? Whose responsibility was it to regulate that review? And what about inter-state commerce? Could the federal government regulate the contents of shipments between citizens of the U.S.? Enter Anthony Comstock.